Tort Law Problem Answers - Free Essay Example

Sample details Pages: 9 Words: 2738 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Case study Did you like this 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: Don’t waste time! Our writers will create an original "Tort Law Problem Answers" essay for you Create order 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

What Makes A Self - 1655 Words

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Massey Coal Free Essays

Massey Coal Case A person is morally responsible for an injury or a wrong if: 1. the person caused or helped caused it, or failed to prevent it when he or she could have and should have 2. the person did so knowing what he or she was doing 3. We will write a custom essay sample on Massey Coal or any similar topic only for you Order Now the person did so of his or her own free will Question 1 Massey Energy Company should be held morally responsible for the deaths of the 29 miners. The U. S. Mine Safety and Health Administration issued â€Å"too much† citations for the violations in the mines Massey Energy Company owned. The company always challenged several of the citations and corrected enough of the significant and substantial violations to allow its total violations to fall below the level needed to force its closure. This means in terms of safety, the company only make significant safety change in order for their mines not to be totally closed but not make a major safety changes in order to follow all the guidelines of MSHA and eliminate all possible endangerment in the mines. Massey should be held morally responsible because of the lack of effort the company put in to improve the safety quality in their mines. Question 2 Don Blankenship should be held morally responsible for the deaths of the 29 miners. Don wrote a memo stating that managers should concentrate on producing coal and not waste time responding to requests to fix things. It was not clear what had ignited the explosion of April 5 but it was almost certain that is was caused by accumulations of methane and coal dust. If Don had enforced the managers to focused more on the safety of the mines and the miners so that they are up to MSHA safety standards rather than only to concentrate on producing coal, the April 5 incident could well be prevented. Don Blankenship lack of care for the miners and prioritizing profit over safety are enough reasons for him to be held morally responsible for the deaths of the 29 miners. Question 3 MSHA should somehow be held morally responsible for the deaths of the 29 miners. First of all, the company does not operate up to the standard when it comes to protecting the lives of the miners. The agency was understaffed and its inspectors were overworked. Also, the week before the mine explosion, half of the agency’s inspectors failed to attend required training courses and the agency neither kept track of their attendance nor did it sanction them. Not only that, but the company can’t shut down a mine unless the total violations of these coal mine companies are above the level needed to force its closure. Most of the coal mine companies challenged MSHA’s citations and corrected enough of the significant violations so they fall below the shut-down level. This is irresponsible on MSHA’s side. Thy should enforce a tighter and stricter rules when it comes to violations. MSHA should not just imposed fines on the company but they should be more stern when it comes to safety violations by the company. Also, waiting until there is too much violations by the company to close the mines will endanger the lives of the miners. When people lives are on stake, MSHA surely are not up to the standard of that task. Question 4 The miners had some idea of the risks of working in the Upper Big Branch mine however that is not enough for them to be held any responsibility for their own deaths. Don Blankenship had released a memo to the managers specifically stating to ignore wasting time responding to requests to fix things. Managers then would be afraid to object to Don Blankenship requests since they could get fired. During the congressional hearing, survivors and relatives of those who had died testified. Most of the testimony states that they are afraid to go to management and express their fears of the lack of safety in the mine. They are afraid management would look for ways to fire them. So afraid of being fired, miners should not be held responsible for their own deaths because of the lack of freedom they have to express their feelings. Question 5 There is a huge difference between mines without unions like the Massey mines and other mines that had unions. The huge difference is the safety regulations. A union would fought for better enforcement of safety regulations to protect the miners. According to the testimony of Gary Quarles, the huge difference is when MSHA inspector comes to the mines. When an MSHA inspector comes onto a Massey mine property, the code words go out â€Å"we’ve got a man on the property. † When the word goes pit all effort is made to correct any deficiencies or direct the inspector’s attention away from any deficiencies. Also when an MSHA inspector comes to a Massey mine, he/she is only accompanied by Massey people. No coal miner at the mine can point out areas of concern to the MSHA inspector. While in union mines, workers at the mine would accompany the MSHA inspectors during the inspections. Workers also have the right to refuse to work in unsafe conditions without fear of their job. Clearly, in mines without unions like Massey, the people are trying to deceive MSHA inspectors to that they would not get citations for different violations. Seeing the huge difference in enforcing safety regulations, all mines should be forced to have a union. Question 6 The average salary for all jobs in the United States is $43,000 while miners in the Upper Big Branch mine were paid $60,000. Even though a work of a miner required no more than a high school education, the risk of their job is very high, probably the highest. Wages will fail to provide a level of compensation proportional to the risks of a job when markets do not register risks because the risks are not yet known. For example, the health risks involved in mining or using a certain mineral such as manganese may not be known until many years afterward. In this case, wages will not fully compensate for risks. Workers also might accept risks unknowingly because they do not have adequate accept to information concerning those risks. Workers don’t have the money or the tool to collect information needed to assess the risks of the jobs they accept. Workers might accept known risks out of desperation because they lack the mobility to enter other less risky industries or because they lack information of the alternatives available to them. Massey is only paying $17,000 more than the average of all jobs in the United States. Knowing all the risks as a miner such as exposure to methane nd all other lethal gases and also the high rate of accidents in Upper Big Branch mine due to poor safety regulations, a wage of $60,000 surely does not cover the all the risks that the miners are exposed to. Only $17,000 more on the wage of the miners than the average wage of all the jobs in the U. S. is not an ethical approach by the company. There is a far more safer job even though they are lower in wages . But the $60,000 in wages is not worth it for the miners considering all the job risks Massey doesn’t account for. So, Massey was not handling job risk in an ethically appropriate manner. Question 7 Massey Energy Company did not fulfill a lot of ethical obligations. The company violated the ethics of care. An ethic of care says they we should care for those dependent on and related to us. The miners are dependent of the managers and CEO of the company to enforce tighter and stricter safety regulations, however Massey failed to do so. The company violated the ethics of pollution control. Massey was faced with the problem of disposing millions of gallons of coal slurry the mines were producing. They did not control their pollution of coal slurry into the environment, thus violating the ethics of pollution control. Massey also violated different rights. Positive rights state that duties of other agents (Massey) to provide the holder of the right (the miners) with whatever he or she needs to freely pursue his or her interests. The miners interest is to have a high quality safety regulations in the mines and Massey failed to provide this interest. Massey also failed the fairness of wages and the fairness of employee working conditions. The wage they are paying to the miners are not enough to cover all the job risks the miners are exposed to in the mine. Massey also failed to provide proper working condition in the Upper Big Branch. How to cite Massey Coal, Essay examples