Mathias v. Accor Economy Lodging ISSUE(S): Does the failure to take preventative steps against, a situation which results in some level of physical harm and/or unconsented offensive touching constitute [an] intentional tort(s)? If such failure to take preventative steps (and/or disclose) is an intentional tort, can the plaintiff obtain damages above and beyond compensatory damages? RULE(S): A tort is a “civil wrong” and there are essentially two main types, intentional torts and negligence. The former involves some form of intent or “recklessness” on the part of the defendant, whereas negligence is generally defined as the absence of the exercise of reasonable care by defendant, with harm occurring to the plaintiff as a result. The types of intentional torts implicated here are battery and fraud.
The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists. A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff.
The plaintiff files a negligence claim so the defendant uses a contributory negligence claim against the plaintiff that effectively states the injury was caused partially because of the plaintiff's own actions; This is a contributory negligence counterclaim. If the defendant successfully proves the claim, the plaintiff may be totally or partially restricted from recovering damages. Comparative Negligence happens when each party’s negligence for a given injury is weighed when determining damages. There are two approaches with this method: pure comparative negligence and modified comparative negligence. For pure comparative, plaintiff damages are totalled and then reduced to reflect their contribution.
It is necessary for the C to show that the act was either INTENTIONAL or NEGLIGENT I.e. to distinguish between which head of liability they wish to sue under: Fowler v Lanning 1959 1 QB 426 |Court | | |Facts |In a writ (now a claim form) the C claimed damages for trespass to the person. In his statement of claim (now statement of case) he alleged that on | |
Reasonableness itself is any clause which purports to either exclude or restrict liability for a breach of contract (s.3 of the Unfair Contract Terms Act 1977), this applies where the party subject to the term is either dealing as a consumer or on the other party’s written standard terms of business. Meaning that a non –consumer party will be subject to a test of reasonableness (s.3(2)(a)). In s.3(2)(b) it goes further into discussing the extension towards any contractual term by virtue which a party may claim to be entitled. Within these provisions we can infer that it’s this section is trying to exclude liability indirectly, by using the clauses that define a party’s obligations very restrictively. The requirement of reasonableness is set out in s 11 of the UCTA 1977, the main element of the test is that ….a fair and reasonable one to be included having regard of the circumstances which were or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
Usually the party appealing must show that the mistake would have affected the outcome. In this case, Cooper Tire complained that the testimony of Richard Grogan was
Legal Defense Justification and excuse is the two forms of legal defense. Justification is when the defendant admits to committing the act in question but claims it was necessary in order to avoid some greater evil. Whereas, excuse is when a defendant claims some personal condition or circumstance at the time of the act was such that he or she should not be held accountable under the criminal law (Schmalleger, Hall,
If so, explain. Yes, WIRETIME, Inc. has committed a tort called tortious interference with a contract. They caused a contracting party to commit a breach of contract. They induced Janet to not fulfill her contract by interfering for their own benefit. Janet can prove that the third-party interferer acted intentionally, by their actions and the contractual breach (which they were aware of).
An example of fault being used in the law is the Mens Rea requirement in s.18 OAPA. This requires specific intention, which shows that the D must have been culpable voluntarily. Regarding its role in civil law, it is essential to prove fault in some areas, but not in others. For example proving fault is crucial for a successful claim in negligence. Here, fault is tested in breach, which states that D is at fault if they do not act like the ordinary, sensible individual.
Explain using examples the meaning of the term duty of care Duty of care is a legal obligation imposed on individuals which requires them to adhere to a standard of reasonable care while performing acts that could foreseeably harm others. In a negligence claim, duty of care is the first element that must be proved. It depends entirely on the court to determine if a duty of care is owed exist or should. People, generally, are mostly negligent in their daily lives; however, there are some certain steps required of a right thinking person to must have taken to avert a potential harm to anyone, which a duty of care is legally owed to. It’s entirely up to the court of law to determine if a duty of care exists in some certain negligence cases.