Issues in the Law of Torts

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

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The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

European Review of Contract Law ◽

10.1515/ercl-2020-0026 ◽

2020 ◽

Vol 16 (4) ◽

pp. 465-488

Author(s):

Thomas M.J. Möllers

Keyword(s):

Case Law ◽

Third Party ◽

Broad Term ◽

Legal Texts ◽

Classical Methodology ◽

The Law ◽

Legal Methodology ◽

The Relationship ◽

Further Development ◽

Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

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CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

International and Comparative Law Quarterly ◽

10.1017/s0020589321000087 ◽

2021 ◽

Vol 70 (2) ◽

pp. 271-305

Author(s):

Paula Giliker

Keyword(s):

Comparative Study ◽

Common Law ◽

Civil Law ◽

Tort Law ◽

Case Law ◽

Legal Scholarship ◽

Legal Rules ◽

The Law ◽

Codal Provisions ◽

Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

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Law of Torts

Japanese Law ◽

10.1093/oso/9780198869474.003.0010 ◽

2021 ◽

pp. 191-211

Author(s):

Hiroshi Oda

Keyword(s):

Burden Of Proof ◽

Tort Law ◽

Case Law ◽

Civil Code ◽

Tort Liability ◽

The Law ◽

General Provision

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.　

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13. Exclusion from asylum

Immigration & Asylum Law ◽

10.1093/he/9780198815211.003.0013 ◽

2018 ◽

Author(s):

Gina Clayton ◽

Georgina Firth ◽

Caroline Sawyer ◽

Rowena Moffatt ◽

Helena Wray

Keyword(s):

United Nations ◽

Host Country ◽

Case Law ◽

Crimes Against Humanity ◽

Refugee Status ◽

Refugee Convention ◽

The United Nations ◽

The Law ◽

The Relationship

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter considers the provisions whereby an individual can be excluded from refugee status because of their conduct. These are as laid down in the Refugee Convention and the EC Qualification Directive. The chapter discusses up-to-date case law on exclusion from refugee status based on crimes against humanity, serious non-political crimes, and acts against the purpose and principles of the United Nations. It deals with the issue of complicity and the relationship with the UK’s anti-terrorism legislation. It also deals with the situations in which refugees can be removed from the host country.

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1. Introducing constitutions and public law

Public Law Directions ◽

10.1093/he/9780198807315.003.0001 ◽

2019 ◽

pp. 3-24

Author(s):

Anne Dennett

Keyword(s):

Public Administration ◽

Balance Of Power ◽

Administrative Law ◽

Public Law ◽

The State ◽

The Law ◽

The Uk ◽

And Control ◽

The Relationship

This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility and control the power of the state. Indeed, a state's constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK's national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.

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Markesinis & Deakin's Tort Law

10.1093/he/9780198747963.001.0001 ◽

2019 ◽

Author(s):

Simon Deakin ◽

Zoe Adams

Keyword(s):

Deep Understanding ◽

Tort Law ◽

Economic Interests ◽

Economic Context ◽

The Subject ◽

The Common ◽

The Law ◽

Economic Perspectives ◽

The Relationship ◽

8Th Edition

Markesinis and Deakin’s Tort Law, now in its 8th edition, provides a general overview of the law and discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy. In addition, the book provides a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context, thereby giving students a deep understanding of tort law. The book is composed of eight parts. Part I starts by setting the scene, Part II looks at the tort of negligence. Part III turns to special forms of negligence. This is followed by Part IV which examines interference with the person. Part V turns to intentional interferences with economic interests. The next part looks at stricter forms of liability. Part VII examines the protection of human dignity which includes looking at defamation and injurious falsehood, and human privacy. The last part looks at defences and remedies.

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10. Children needing services, care, and protection

10.1093/he/9780198811862.003.0010 ◽

2018 ◽

Author(s):

Stephen Gilmore ◽

Lisa Glennon

Keyword(s):

Family Life ◽

Local Authority ◽

The State ◽

Care Plan ◽

Significant Harm ◽

The Law ◽

The Relationship

This chapter examines the relationship between children, parents, and the state, looking at how the law responds to children needing services, care, and protection. Topics discussed include: Part III of the Children Act 1989; the threshold for compulsory intervention in family life based on the concept of ‘significant harm’; protecting children in an emergency; interim care and supervision orders; the local authority’s care plan and respective roles of the local authority and court; and discharge of care orders.

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1. Introduction

10.1093/he/9780199591985.003.0001 ◽

2013 ◽

Author(s):

Simon Deakin ◽

Angus Johnston ◽

Basil Markesinis

Keyword(s):

Tort Law ◽

Individual Responsibility ◽

Current State ◽

English Law ◽

The Law ◽

The Relationship ◽

Tort Claims

This introductory chapter first reviews the current state of the law of tort. It discusses the increase in tort claims due to our greater ability to cause more and greater harm and our reduced willingness to put up with the normal vicissitudes of life. It considers the law of individual responsibility. It suggests that tort law is becoming by the day a more complex set of rules than it ever was, where national law mixes with legal ideas emanating from foreign jurisdictions. Tort law rules are also becoming intermingled with those from other branches of English law. The second part of the chapter discusses the relationship between tort and contract.

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PUBLIC INTEREST AS A DETERMINANT OF TERRITORIAL AUTONOMY

Roczniki Administracji i Prawa ◽

10.5604/01.3001.0014.4245 ◽

2020 ◽

Vol 3 (XX) ◽

pp. 223-233

Author(s):

Przemysław Niemczuk

Keyword(s):

Public Interest ◽

National Interest ◽

The State ◽

Social Conditions ◽

The Public ◽

Relative Term ◽

The Law ◽

Distribution Of Power ◽

The Relationship

The article aims to explore the concept of territorial autonomy. The research assumption is that public interest is one of the fundamental determinants of territorial autonomy. Territorial autonomy has not been defined by law. It is a general and relative term, and thus difficult to define (if such an enterprise is possible at all). However, one thing is certain - the idea behind this term determines the law regulating the organizational and territorial form of the state, i.e. the distribution of power between the centre and the territory. Further attempts to specify territorial autonomy are met with serious difficulties. Therefore, it is crucial to look at it through the prism of public interest. The term public interest has a relative meaning, because it depends on the constantly changing social conditions. This variability is, among others, a result of the territorial context. The national interest and the territorial interest will be defined in different ways. It seems, therefore, that in order to explicate the notion territorial autonomy, one should refer to the concept of public interest and then take into account the relationship between the interest of a territory and the interest of the whole state. This will make it possible to outline territorial autonomy through the prism of its determinant – the public interest.

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