Tort and Criminal Law Problem - Free Essay Example

Sample details Pages: 8 Words: 2486 Downloads: 1 Date added: 2017/06/26 Category Law Essay Type Research paper Did you like this example? Law of Tort 2014 Table of Contents 1. In terms of the above scenario analyze the cause of action against David under the tort and criminal lawà ¢Ã¢â€š ¬Ã‚ ¦Ãƒ ¢Ã¢â€š ¬Ã‚ ¦. 1.3 2. Don’t waste time! Our writers will create an original "Tort and Criminal Law Problem" essay for you Create order Identify the element of animus injuriandi for defamationà ¢Ã¢â€š ¬Ã‚ ¦Ãƒ ¢Ã¢â€š ¬Ã‚ ¦Ãƒ ¢Ã¢â€š ¬Ã‚ ¦3.2 3. Explain whether the expenses for surgery incurred by Mr. Gunesekara is compensatory or non-compensatoryà ¢Ã¢â€š ¬Ã‚ ¦..5.1 4. Evaluate the prospective loss and defense for Negligenceà ¢Ã¢â€š ¬Ã‚ ¦Ãƒ ¢Ã¢â€š ¬Ã‚ ¦ 5.2 1.3 In terms of the above scenario analyze the cause of action against David under the tort and criminal law. Tort inthe common lawjurisdiction is thecivil wrong that unjustly causes somebody else to suffer harm or loss resulting inthe legal liabilityfor a person who commits tortious act. Althoughthe crimesmay be torts, thecause of lawful actionis not essentially a crime, as harm may be due to thenegligencewhich doesnà ¢Ã¢â€š ¬Ã¢â€ž ¢t amount to thecriminal negligence. A victim of the damage or harm can recover the loss asdamagesin thelawsuit. In order to succeed, theplaintiffin lawsuit has to prove that the actions or else lack of the action were leg ally recognizable causeof harm. In law, thecause of actionis the set of facts sufficient to justify the right to sue to get property, money or else the enforcement of the right against other party. The term too refers to the legal theory upon which the plaintiff brings suit for example breach of the contract, false imprisonment. In the given Scenario Mr. David having delivered certain raw materials in a trailer and left the trailer inside the factory of Mr. Paul which was to be unloaded by his servants. After the unloading one servant of Mr. Paul pushed and placed the trailer on the public road and informed Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s servants to pick up the trailer in due course. But Mr. David did not pick up the trailer and left it overnight. Due to the dark in the road an omnibus of Mr. Peter was driven by his driver on the road collided with the trailer and was damaged. Here the cause of action is Omission. After the unloading one servant of Mr. Paul pushed and placed the trailer on the public road and informed Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s servants to pick up the trailer in due course. But he did not pick up the trailer. Therefore the damage was happened. There can be no liability for a mere omission unless there has been a prior act of commission connected therewith. In the given Scenario we can clearly see the prior act of commission done by Mr. David that he having delivered certain raw materials in a trailer. When the person through his conduct has created the situation, which is able of bringing the risk of the harm to other person, any omission subsequent to that prior conduct is responsible as well as liability may happen from such omission. In this instance as per Innes C.J. à ¢Ã¢â€š ¬Ã…“The nature of act creates the liability and liability may be regarded as the springing from the commission and combinedà ¢Ã¢â€š ¬Ã‚ . The relevant case South African Railway v. Estate Saunders, the trailer of defendant was pushed on to the side of t he road through the consigneeà ¢Ã¢â€š ¬Ã¢â€ž ¢s servants. The consignee phoned the defendant that trailer was so pushed also ready to be pulled up. After that the trailer wasnà ¢Ã¢â€š ¬Ã¢â€ž ¢t fetched through the defendant as well as it being left in road overnight without lights comprised danger. The plaintiff had collided with trailer. So the defendants were held responsible on the ground that there had been prior conduct on their part as well as the omission to take due protective measures to avoid danger amounts to the commission. In conclusion, in this situation Mr. Peter can file a case against David under the tort and criminal law. Under the tort Mr. Peter can claim damages against David for an omnibus was damaged by the Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s negligent. Incriminal law,the public nuisanceis class ofthe common law offencein which an injury, damage or loss is suffered through local community as an entire rather than through individual victims. The person is guilty of th e public nuisance who (1) does act not warranted by the law, or (2) omits to discharge the legal duty, if an effect of act or omission is to put in danger the life, property, morals, health or comfort of public, or else to obstruct public in the enjoyment or exercise of rights common to whole Her Majestys subjects. Therefore under the criminal law, Mr. Peter can file a case against David. Here Mr. Peter has to prove beyond the reasonable doubt otherwise the case will be discharged by the court. 3.2 Identify the element of animus injuriandi for defamation. Defamation is a civil or tort wrong, which happens when the defamatory material relating to the individual is published. When we see the Defamation, which is a statement that injures the third partys reputation. Thetortof defamation includes bothslander{spoken statements} and libel{written statements}. In the action for defamation the plaintiff must establish the some elements. They are as follow, The statement must have been published of and concerning the plaintiff. The statement complained of must be defamatory. That the defendant had the Animus Injuriandi. Now letà ¢Ã¢â€š ¬Ã¢â€ž ¢s see the element of animus injuriandi for defamation, which is clearly mentioned bellow. The defendant must have acted Animus Injuriandi. Animus Injuriandi is the intention to insult. It is the conscious intent to attack wrongfully a personà ¢Ã¢â€š ¬Ã¢â€ž ¢s good name. There is Animus Injuriandi if such an attack is desired as in itself as where I say something defamatory in order to insult you. Equally there is Animus Injuriandi if such an attack is foreseen as the consequence of obtaining some other object as where I publish sensational news in order to increase the sale of my newspaper as well as it contains something defamatory. The animus Injuriandi is an important element in proceeding for the defamation under the Roman Dutch Law. This is due to the fact that defamation is an action under the Actio Injuriarum in which animus injuriandi is an vital element of liability. Where the words complained of are in themselves as well as in their ordinar y meaning defamatory of the plaintiff the existence of Animus Injuriandi is presumed. The defendant can rebut the presumption through leading evidence of external fact as well as circumstances from which he can ask the court to draw the inference that he had no intention of insulting the plaintiff. He may avoid himself of certain defenses, which in English law are known as justification, privilege as well as fair comment. These defenses are merely deferent ways in which Animus Injuriandi may be rebutted. His real defense is that he had no Animus Injuriandi. He may establish the absence of intention by proving any external fact circumstances bearing on the publication of the words from which the court can draw the reasonable inference that he had an Animus Injuriandi. In English law the liability for defamation is strict. I.e. liability arises from the fact that words of defamatory nature of the plaintiff have been published whatever may have been in the mind of the defendan t at the time of their publication. He can shake off that liability only by snowing that his case falls within one of the three recognized defenses. In conclusion, the animus Injuriandi is an important element in proceeding for the defamation. In the action for defamation the plaintiff must establish the element of Animus Injuriandi. It means the plaintiff has to prove that the defendant had the conscious intent to attack wrongfully a personà ¢Ã¢â€š ¬Ã¢â€ž ¢s good name. Then only we can say it is the element of animus injuriandi for defamation. 5.1 Explain whether the expenses for surgery incurred by Mr. Gunesekara is compensatory or non-compensatory. In law of Tort, the courts award the damages to the plaintiff to compensate a civil wrong committed to her or him through the defendant. The damages are very difficult to assess. The damages are calculated through representing in the economic terms a plaintiffà ¢Ã¢â€š ¬Ã¢â€ž ¢s injury or loss to person, property as well as q uality of life. The reason of the damages is to restore a wounded party (an injured party) to the situation the party was in previous to being harmed. The extent and nature of the harm as well as substantial proof produced through plaintiffs are taken into attention through the jury before giving damages. The money awarded to the plaintiff to compensate for the damages nature incurred loss. The Compensatory damages are given in civil court cases wherever loss has happened as a result of the unlawful conduct or negligence of other party. To receive the compensatory damages the plaintiff must has to prove that the loss occurred as well as that it was the attributable to the defendant. The plaintiff must as well be capable to quantify an amount of the loss in eyes of the judge or jury. The given Scenario as follow, Dr.Gunasekara is a leading consultant of structural engineer works in Jaffna. He won various medals and awards in his life for building structure and designing a nd also he is going to undertake building constructions from a foreign company in Saudi Arabia next year. While one evening he was returning home after his office in Kyte he was knocked down by a lorry nearby the KKS Junction. As a result he suffered serious injuries and he underwent a surgical operation at Asiri Hospital Limited in Colombo. In the personal injury case, the money damages must paid to the plaintiff (an injured person) by someone who is found to be legally in charge for the accident. Once negligence has proved in this case, the defendant must pay Mr. Gunesekara for all the injuries caused through the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions. Therefore the defendant has to pay Mr. Gunesekara to the expenses for surgery as compensation. The personal injuries damages award approximately includes the medical cost care related with the accident. Compensation for the treatment you have previously received as well as compensation for the estimated the cost of medical care that you will need in the future because of the accident. In conclusion, the expense for surgery incurred by Mr. Gunesekara is compensatory. Therefore the defendant must pay Mr. Gunesekara for all the injuries caused through the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions. 5.2 Evaluate the prospective loss and defense for Negligence. The calculation of the future loss of incomes, nevertheless presents real issues, mainly because the courts have to engage in an exercise of the predicting both what will occur to the plaintiff in the future as well as what would have occurred if plaintiff hadnà ¢Ã¢â€š ¬Ã¢â€ž ¢t been injured, in order to guesstimate the difference. The beginning-point in this procedure is to work out the plaintiffà ¢Ã¢â€š ¬Ã¢â€ž ¢s net annual loss of the earnings. The net annual loss is called as the à ¢Ã¢â€š ¬Ã…“multiplicandà ¢Ã¢â€š ¬Ã‚ . Furthermore it will be attuned to take account of the plaintiffs individual prospects of the promotion but no payment is made for the real increases in the average earnings usually. Prospective lose earnings arise in the case for the damages. The time of disability defends on the medical testimony and very frequently such proof is led on behalf of the claimant based on the recent report and an examination. Even if injury is permanent, the hope of working life is essential in the assessment of the damages. Furthermore it could vary as it is the contingent, due to the other factors. It could also be past loss as well as future loss. It has to be pleaded as the special damages. If the injury suffered are such as to lead to permanent disability, then the compensation for the loss of earning power in future. The relevant case à ¢Ã¢â€š ¬Ã…“Gourley (1956) A.C.185à ¢Ã¢â€š ¬Ã‚  is very famous case for the prospective loss. In this case the court held Income taxes as well as other deductions are to be taken into the account in assessing both future as well as past loss of earnings in claims for the damages for personal injury. The defense for Negligence The common law usually accepted two (02) defenses to the negligence Such as the contributory negligence and the assumption of risk. In several states, however one or else both of these defenses have been superseded through new defenses called as à ¢Ã¢â€š ¬Ã…“comparative negligenceà ¢Ã¢â€š ¬Ã‚  as well as à ¢Ã¢â€š ¬Ã…“comparative faultà ¢Ã¢â€š ¬Ã‚ . The Contributory negligence is the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s not a success to exercise the reasonable care for her personal safety. Wherever it still applies that the contributory negligence is the entire defense for defendant if it is a considerable factor in producing the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s injury. Usually even a minor not success to exercise the reasonable care for oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s personal safety, only the slight departure from standard of the reasonable self-protectiveness, gave the defendant a total contributory defense for negligence. For instance, the rule may prevent slightly negligent claimants from recovering any other compensation for their losses while only slightly more careful claimants get the full recovery. In response to (the complaints of its unkind impact on most claimants) nearly all of the states have accepted the comparative negligence methods either by statute or else by judicial decision. The detail of these methods or systems varies, but principle underlying them is fundamentally the same. The Courts seek to decide the relative negligence of the parties as well as award damages in amount to the degree of the negligence determined. The Assumption of the risk is the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s voluntary consent to the known danger. The Voluntariness basically means that the claimant established the risk of her personal free will. The knowledge means that the nature as well as extent of risk was individually present to the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s consciousness. Frequently, the claimantà ¢Ã ¢â€š ¬Ã¢â€ž ¢s knowledge as well as voluntariness is implied from facts of the case. The claimant can also expressly presume the risk of injury through entering a contract claiming to relieve the defendant of the duty of care that she or he would if not owe to the plaintiff. What occurs to assumption of risk in the comparative negligence states? A number of these states have abolished assumption of risk as the separate defense. The Assumption of the risk is frequently incorporated within stateà ¢Ã¢â€š ¬Ã¢â€ž ¢s comparative negligence scheme. In such states, the comparative negligence mostly becomes the comparative fault. In the comparative fault states, then the fact finder decides the claimants as well as the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s relative shares of fault include assumption of the risk and causing the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s injury. In conclusion that the prospective loss as well as defense for Negligence is clearly above mentioned. It gives clear ideas about both . Reference Link: https://en.wikipedia.org/wiki/Cause_of_action Link: https://www.traditioninaction.org/tiabk027AnimusInjuriandiI.htm Link: https://heinonline.org/HOL/LandingPage?handle=hein.journals/soaf66div=6id=page= Link: https://www.verisk.com/capabilities/data-and-statistical-services/advisory-prospective-loss-costs-average-future-claim-costs.html Link: https://injury.findlaw.com/accident-injury-law/defenses-to-negligence-claims.html Link: https://torts.uslegal.com/negligence/defenses-to-negligence/ Reading Gafoor sir Notes. Page 1