Tort and Conflict of Laws

In: Other Topics

Submitted By oyede
Words 352
Pages 2
ge » Other Topics
Tort and Conflict of Laws

In: Other Topics
Tort and Conflict of Laws

CHAPTER 1
An Introduction 1.1 Introduction: The peculiar feature that tort occupies in private international law is that if the tortious act has been committed entirely locally, then lex loci delicti governs it, irrespective of the fact that whether it has or has not some foreign element, such as, both or one of the parties is domiciled or resident abroad or national of another country. The foreign law is applicable only in some very exceptional situations.
Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation.

1.2 Research Methodology: In making this project report the doctrinal method of research has been used.

1.3 Focus area: This project report focuses on the tort under private international law.

1.4 Scope of the study: In this project report the meaning of tort and law applicable to tort under private international law has been explained.

CHAPTER 2
Conceptual Analysis

2.1 TORT AND CONFLICT OF LAWS: Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation.
The same act may be both a tort and crime: assault can be a cause of action in tort and may also be a criminal offence. That is also true in some other situations, for example, misappropriation of property and (in India) defamation.
Conflict of laws problems can arise in the field of torts in a number of situations. To take just tow examples, the problem can arise if the act causing injury is committed outside the country and proceedings are brought in the…...

Similar Documents

Law of Tort

...Negligence In order to advise XXX any claims he may have in torts, it is necessary to determine if such negligence exists. To sue for negligence, the burden of proof is on the plaintiff who has suffered damage to establish the following four prerequisites based on the evidence: 1) A duty of care owed by the defendant to the plaintiff; 2) Breach of the duty of care by the defendant; 3) Plaintiff suffered damage resulting from the breach; and 4) The damage suffered was a foreseeable consequence of the breach that the connection between the damage and the breach were not too remote. 1) The first question of fact is “Did the defendant owe the plaintiff a duty of care?” Under the Common Law: Donoghue v Stevenson Under the common law, whether or not the defendant owed to the plaintiff a duty of care is based on the neighbour principle established in the precedent case of Donoghue v Stevenson [1932], which affirms that a sufficiently close relationship (neighbour relationship) between the parties can give rise to a duty of care. According to Donoghue v Stevenson [1932], neighbour refers to the persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when directing mind to the acts or omissions. In other words, a duty of care arises when persons in a reasonable contemplation are ought to take reasonable care to avoid acts or......

Words: 1229 - Pages: 5

Law of Tort

...Introduction This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable. Tort Law Tort Law in layman’s terms is a civil wrong. It does not necessarily need to be an illegal action but an action that has consequently caused harm or suffering to another. The main outcome for a person claiming they have been a victim of a tortious act is compensation. For a successful tort claim the three main elements need to be present and their needs to be a standard of proof; a balance of probabilities. The Necessary Elements As followed in Donoghue v Stevenson [1932] AC 562 i. Duty of Care ii. Breach of Duty iii. Damage caused by Breach of Duty. Causation This coincides with the three part test established in case that leads precedent in tortious liability, Caparo Industries Plc v Dickman [1990] 1 All ER 568. i. Foreseeability of Damage ii. A relationship characterised by the law as one of proximity or neighbourhood. iii. A relationship characterised by the law as one of proximity or neighbourhood Duty of Care Duty of care prior to 1932 was restricted to situations where a relationship had already been established such as a doctor-patient relationship. However in Donoghue v Stevenson that duty of care became adapted. Lord Atkin formulated a principle known as the ‘neighbour test’; ‘take reasonable......

Words: 1639 - Pages: 7

Tort Law

...Title : “To impose a duty of care in negligence on the police for their failure to prevent a crime taking place, even in situations where both the suspect and victim were (or ought to be) known, is a tremendously difficult task.” Why is it so notoriously difficult to bring successful negligence claims in such situations? The tort of negligence is defined as the breach of a legal duty to take care resulting in damage to claimant which was not desired by the defendant. According to Blyth v Birmingham Waterworks Co it is the “omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. But the point is that the Law of negligence has no statutory basis. It has developed through a huge number of cases. This means that whenever considering a duty of care exists in any given situation the courts have flexibility to take public policy consideration into account and steer the evolution of the tort of negligence accordingly. This flexibility has also allowed to protect certain classes of defendant from liability in negligence. The traditional approach adopted by the courts has been to refuse an action against the police either on policy grounds or because there is no proximity between the injured person and the police agent. Since the implementation of the Human Right Act 1998 it is possible to bring a direct action......

Words: 1591 - Pages: 7

Tort Law

...The tort law case I have selected is Federal Aviation Administration et al v. Cooper. This case (No. 10-1024) was brought before the United States court of appeals by writ of certiorari and argued on November 30, 2011. Justice Alito delivered his decision on March 28, 2012. The facts of the case are as follows: The respondent (Cooper) was a licensed pilot who worked for the FAA. Cooper was diagnosed with human immunodeffiency virus (HIV) which would have prevented him from receiving the necessary medical certificates necessary to operate aircraft under FAA regulations at the time. He intentionally withheld that information from the agency on several occasions in order to receive continued renewals of his medical license certificates under FAA regulations. During this time Cooper applied and received long-term disability benefits from the Social Security Administration (SSA). In an attempt to identify medically unfit individuals who were obtaining FAA certifications, the Department of Transportation (DOT) provided the SSA with a list of names of licensed pilots to cross reference with their database in order to identify individuals who were receiving disability benefits while concurrently holding FAA flight certifications. Respondents name was discovered and subsequently his license was revoked and he was indicted for making false statements to a Government agency. Mr. Cooper was fined and sentenced to probation. Later on he filed suit against the Government......

Words: 637 - Pages: 3

Tort Law

...MATERIALS WEEK 1 The dotted line between ‘fault liability’ and ‘strict liability’: four ideal types of liability in tort law 1. Are the notions of fault and strict liability misleading? • two notions should be considered as they will be applied all along the four types of liability: - fault (as in fault liability) ( liability for one’s own faults. - risk (or strict liability) ( accountability, based on criteria other than individual fault, for the consequences resulting from an unlawful/illegal act. Four ideal types • a) Individual liability for one’s own faults ▪ the basis for this type of liability lies in the conduct of the person held liable. ( this deserves the qualification ‘fault liability’. ▪ article 6:162 BW is the legal basis for the duty to pay damages where the conduct of a person is qualified as wrongful. • b) Individual liability without blameworthiness ▪ accountability is required. ( elements of fault, as wrongful conduct provides the foundation but also elements of strict liability, since there may be no grounds for apportioning blame. ▪ article 6:162 BW as well as article 6:165 BW may provide some legal basis. • c) Liability for damage caused by others (vicarious liability) ▪ this is a form of strict liability, insofar as there is strict responsibility for the fault of others. ▪ Articles 6:169, 6:170, 6:171 and 6:172 BW provide some legal bases...

Words: 986 - Pages: 4

The Tort Law

...Negligent Tort Linda Rapp Bus 670 Dr. Jennifer Stevens Febuary10, 2014 Ashford University Negligent Tort Understanding the Negligent Tort concerning product subject to recall from the Consumer Product Safety Division the product involved was three styles of Sugarfly-branded hooded woven and cotton styles jackets. The jackets were manufactured by Burlington Coat Factory stores nationwide. Style number KMCB1255,KMCBJ410,KMCBJ421 are the products being recalled the hooded jacket should be taken away from children to avoid hazard. The coat coat sizes are for girls age 7 through 16 the date of the recall is from September 2011 through September 2013. The consumer will receive complete product refund around $ 40.00. The Burlington Coat Factory negligent actions in selling the product in question in product liability with the laws that protect consumers the Safety Improvement Act in 2008 (Seaquist,2012) The answer is if the Burlington Coat Factory had not recalled the product and caused harm to consumers they would have been liable for negligence actions. The Discusses the following in relation to the product recall:: Duty of Care Standard of Care Breach of the Duty of Care Actual Causation Proximate Causation Actual Injury Defenses to Negligence Analyze and apply a relevant consumer protection statute identified under “Consumer Protection” in Chapter 8 of your text in conjunction with the product recall that you have identified.Must addres Home /......

Words: 336 - Pages: 2

Law of Tort

... Law of tort is a civil wrong other than a claim for breach of contract; and for which a right civil action for damages may arise. Negligence is defined by Winfield and Jolowicz as “Tortious liability arises from the breach of duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. (Roger, W.V.H., 2006) In Malaysia, the law of tort is largely derived from common law in England. In the law of tort, negligence is the most widely used tort in the legal system. In order for a claimant who is seeking for remedy to successfully bring a claim in a negligence case, they must first prove these 3 factors: * The defendant held a legal duty against the claimant. Therefore, the defendant owed the claimant a duty of care. * The defendant had breach of that duty. * The claimant are suffering damages resulted in that breach of duty. These three factors will sometimes be shortened as duty, breach and damage. Duty of care This important factor of negligence came from a famous case of Donoghue v Stevenson (1932). In this case, the claimant, Ms Donoghue went to the Minchella’s Wellmeadow Café in Paisley with her friend. Her friend ordered a bottle of ginger beer that was contained in an opaque bottle. When she poured the remained ginger beer, a decomposed snail came out with her ice cream. Ms Donoghue became ill as she has consumed the contaminated beer. She could not sue the café under...

Words: 7008 - Pages: 29

Law of Torts

...STAGE ONE: IDENTIFICATION OF THE ISSUES APPARENT I have been asked to advise my client as to his/her prospect regarding. The relevant material facts contained in the excerpt provided include……… From initial viewing of the hypothetical facts I propose that there are numerous legal issues contained: STAGE 2: IDENTIFICATION AND EXPLANATION OF THE APPLICABLE LEGAL RULES I assert that the relevant rules that apply are found in the law of torts(with specific identification to the tort of negligence, a tort that emerged as of primary importance as per the landmark decision in the House of Lords in Donoghue v Stevenson (1932) AC 562.) and statutory provisions of the Civil Liability Act 2002 (WA) which have been enacted to either clarify or modify the common law rules that determine liability for negligence. As a broadly conceived scope, the underlying principle of negligence is that a defendant may be liable in a wide range of circumstances for failure to take reasonable care which causes harm to a plaintiff’ protected interests. Now, wrongful or careless behaviour is not always actionable in negligence. The defendant will only be liable if the plaintiff can prove that three essential requirements are satisfied: Three essential requirements that must be satisfied in order to establish liability in negligence: (a) That the defendant owed the plaintiff a duty of care * Pre – existing relationship will create a duty of care. OR * “Neighbour principle”...

Words: 1916 - Pages: 8

Tort Law

...siblings, friends and colleagues to support and helped me to successfully complete full assignment . Table of Contents Contents TORT: 3 Intentional Tort: 3 Strict Liability: 3 Negligence: 4 Duty of care: 4 Breach of Duty: 5 Causation: 6 Vicarious Liability: 8 Reference: 12 LO 3 Understanding the principles of liability in negligence in business activities. TORT: The liability of the violation of a fixed law, law arises primarily; this duty is towards persons generally and its breach is capable of redress by action unliquidated damages. This is a civil wrong, in the sense that it is committed against an individual, not the State. The essence of tort law is that a person has certain interests that are protected by law. These interests can be protected by a court granting a sum of money, known as damages. There are increasingly limited circumstances where the victim of a tort may avail himself of self-help. Types of Tort: There are basically three types of tort: 1. Intentional Tort 2. Strict Liability 3. Negligence Intentional Tort: It is a civil offense which occurs when the wrongdoer intentionally engages in conduct that results in damages to another. Hitting another person in a fight is an intentional act that would be the tort of battery. Accidentally hit a person would not be an intentional tort because it had no intention of attacking the person. Strict Liability: Sometimes called as absolute liability, it is......

Words: 2880 - Pages: 12

Tort and Conflict of Laws

...feature that tort occupies in private international law is that if the tortious act has been committed entirely locally, then lex loci delicti governs it, irrespective of the fact that whether it has or has not some foreign element, such as, both or one of the parties is domiciled or resident abroad or national of another country. The foreign law is applicable only in some very exceptional situations. Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation. 1.2 Research Methodology: In making this project report the doctrinal method of research has been used. 1.3 Focus area: This project report focuses on the tort under private international law. 1.4 Scope of the study: In this project report the meaning of tort and law applicable to tort under private international law has been explained. CHAPTER 2 Conceptual Analysis 2.1 TORT AND CONFLICT OF LAWS: Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation. The same act may be both a tort and crime: assault can be a cause of action in tort and may also be a criminal offence. That is also true in some other situations, for example, misappropriation of property and (in India)......

Words: 3643 - Pages: 15

Tort Law

...responsible medical person experience is a special art. In this aspect the doctor is not a negligent. 2. Tort law Tort law covers in various areas like a claims of passenger insured in a road accident, a patient issue by doctor negligence. People arrested by police wrongly, and landowner land has been trespassed on. The tort law comes when there is a violation of general responsible duty fixed by civil law . Normally tort law is committed and allows the victim to claim towards financial due to damage of this personal so that it is a compensate for the commission of the tort. Basically the Tort Law involves violation of the duty that is fixed by the law. According to the above Bolam medical case as I mentioned above will comes under this law because the doctor negligence due to violating of his duty and responsibility to identify the patient treatment requirements. For example the duty of the doctor responsible as per the contract is a violate on his responsibilities is a issue in this situation. The tort main aim is to compensate for the patient results according to the doctors treatment. The contract aims primarily to enforce promises by the doctor responsibilities in his duties. The tort law has set of principles to guide the various situations in various cases as I mentioned above. The role of policy in a tort is depends on many decisions. For example many tort cases one or both people were involved through insurance bodies. The medical negligence is a......

Words: 2334 - Pages: 10

Tort Law

...result of coffee burn torts and is only an attempt for McDonald’s to gain market share in the coffee industry, customers now have the option to safer morning beverages. Precedence in America’s Court System Liebeck v McDonald’s Restaurant set precedence in the American court system. The facts surrounding the case did not leave as much precedence as the misconceptions surrounding the case did. This case set precedence for McDonald’s and other large corporate fast-food restaurants. This case showed that it may be wiser to settle for a small amount out of court instead of paying large judgments and incurring huge legal fees. The erroneous judgment of nearly $3 million set precedence for tort reforms in the American legal system. This case made it harder for citizens to be fully compensated for the torts of other corporations. Since this case, there have not been many mainstream cases that have stemmed from the torts of a fast-food restaurant. This is probably due to fast-food companies settling outside of court. Tort Reform Liebeck v McDonald’s Restaurant has been the poster child for corporation’s tort reform (Carlson, 2011). Misconceptions about the judgments and facts of this case have caused a tort reform movement because America thought that a woman received nearly $3 million dollars for spilling coffee on herself, and people just did not know the facts of the case. Corporations have used this case to limit citizens’ abilities to be compensated for the torts of......

Words: 3592 - Pages: 15

Tort Law

...QUESTION. “The law tampers with the But for test of causation as its peril.” -Lord Brown; Sienkiewicz v Greif (UK) Ltd (2011) The Bust for test of causation is said to be fraught with difficulties. How has the law developed to overcome these difficulties? INTRODUCTION Negligence in the law of tort is the failure to exercise the care that a reasonably straight person would exercise in such like circumstances. In tort law, this area of negligence involves harm caused by carelessness and not by intention. The tort of negligence structures a standout amongst the most element and quickly changing zones of obligation in the present day law. Its rise in the 20th century shows the pressure of the social and economic changes on the traditional ways of legal redress for interference with protected interests. The reasonable structure of carelessness is very adaptable and fit for general application. These components have permitted the courts to use the tort in the setting of novel cases for pay. On the other hand, the development of carelessness has not supported the extension of risk and throughout the years, courts have been putting a few limitations on this degree. The tort of carelessness does not right now appear to be set upon some foreordained way of growth as it once had all the earmarks of being. The modern history of tort law started with the groundbreaking judgment of Lord Atkin in Donoghue v Stevenson where Mrs Donoghue went to a cafe with a friend. The friend...

Words: 4638 - Pages: 19

Conflict of Law

...traditional rule of lex loci delictus in determining which state’s substantive law is applicable to actions sounding in tort[i]. Lex loci delictus holds that the substantive law of the place where the tort occurs applies. It is a recognized principle of the law of the conflict of laws that the law of the state where an alleged tort is completed controls the liability[ii]. Where a tort is committed in one state and sued on in another, the lex loci delicti principle controls[iii]. In Williams v. State Farm Mut. Auto. Ins. Co., 229 Conn. 359 (Conn. 1994), the court held that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury, or lex loci delicti. Thus, under the principle of Lex Loci Delicti, a court will determine the substantive rights of an injured party according to the law of the state where the injury occurred[iv]. The lex loci rule is derived from the vested rights doctrine[v]. According to the vested rights doctrine, a plaintiff’s cause of action owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. Thus, where the tortious act and the resulting injury occur in different states, the rule is that the substantive law of the state where the injury occur controls. Under the provision of the Federal Tort Claims Act which renders the U.S. liable for the torts of its employees, under circumstances where the U.S., if a......

Words: 748 - Pages: 3

Tort Law

...Torts Assignment PART 1 1) Does Autumn Bay High owe a duty of care to Persephone and Aphrodite? Consider the common law as well as any impact that the Civil Liability Act 2002 (NSW) may have on the common law. The main considerations that have to be taken into account when deciding whether Autumn Bay High owed a duty of care to Persephone and Aphrodite are the reasonable foreseeability of nervous shock and whether their duty of care was non-delegable. Under the Civil Liability Act 2002 (NSW) “the defendant owes a duty of care to the plaintiff if they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognized psychiatric illness if reasonable care were not taken”. It has been established through Tame v New South Wales & Annetts v Australian Stations Pty Limited[1] that reasonable foreseeability of mental harm is a precondition of the existence of a duty of care. Taking the provisions of the Civil Liability Act 2002 (NSW) into account, the fact that the school is taking its students on a ski trip already establishes a general duty of care. It is reasonably foreseeable that such an activity poses the possibility of serious injuries if adequate supervision is not provided. In addition to this, it is not fanciful or far-fetched that witnessing a horrific physical injury to a fellow student can cause sudden shock and consequential mental harm to a person. While Aphrodite witnesses the actual accident, and......

Words: 3481 - Pages: 14