scholarly journals WHO IS MY NEIGHBOUR? THE DUTY OF CARE IN THE IMMIGRATION CONTEXT: A PERSPECTIVE FROM CANADIAN CASE LAW

2017 ◽  
Vol 33 (2) ◽  
pp. 117
Author(s):  
Sasha Baglay
Keyword(s):  
Tort Law ◽  
Case Law ◽  
The State ◽  
Duty Of Care ◽  
Power Imbalance ◽  
Private Law ◽  
Absolute Power ◽  
Host State ◽  
The Absolute ◽  
Nuanced Understanding

This article reviews and analyzes recent Canadian jurisprudence on immigration-related torts, situating it in the context of the contrasting logic of immigration and tort law. Immigration law’s focus on the absolute power of the state to control admission directs courts away from the recognition of the duty of care. In contrast, tort law theory does not preclude the possibility of private law duties to non-citizens, especially in light of the absence of other effective remedies to address the power imbalance between the host state and the non-citizen. The article examines how these two narratives were negotiated in cases of alleged negligence in immigration processing. It problematizes certain aspects of the current construction of the duty of care towards non-citizens and offers some suggestions for a more nuanced understanding of the factors considered under the Anns/Cooper test. Dans cet article, l’auteure examine et analyse la jurisprudence canadienne récente des délits civils relatifs à l’immigration en la situant dans le contexte de la logique d’opposition du droit de l’immigration et du droit de la responsabilité civile délictuelle. Le droit de l’immigration, qui est centré sur le pouvoir absolu de l’État de contrôler l’admission d’immigrants, fait oublier aux tribunaux la reconnaissance du devoir de diligence. En revanche, la théorie du droit de la responsabilité civile délictuelle n’écarte pas la possibilité d’obligations de droit privé envers des non-nationaux, surtout en l’absence d’autres recours applicables pour résoudre le déséquilibre de pouvoir entre l’État d’accueil et le non-national. Dans cet article, l’auteure étudie la manière dont ces deux discours ont été conciliés dans des cas de négligence présumée dans le traitement de demandes d’immigration. L’auteure définit le problème que posent certains aspects de l’interprétation actuelle du devoir de diligence envers des non-nationaux et présente quelques idées permettant une compréhension nuancée des facteurs pris en compte dans la cause type Anns/Cooper.

9. Employers’ liability and non-delegable duties

2018 ◽  
Author(s):  
Vera Bermingham ◽  
Carol Brennan
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

The Fiduciary Duty of Care

2019 ◽  
pp. 403-418 ◽  
Author(s):  
John C. P. Goldberg
Keyword(s):  
Tort Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Private Law ◽  
Fiduciary Duties ◽  
Distinctive Features ◽  
Duty Of Loyalty

Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, the chapter argues, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.

7. Negligence: occupiers’ liability

2020 ◽  
pp. 165-195
Author(s):  
Carol Brennan ◽  
Vera Bermingham
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

scholarly journals When are occupiers in breach of their duty of care? The advantages of a systematic test

Legal Studies ◽  
2019 ◽  
Vol 40 (1) ◽  
pp. 95-112
Author(s):  
Marie-Bénédicte Dembour ◽  
Juliet Turner ◽  
Charles Barrow
Keyword(s):  
Case Law ◽  
The State ◽  
Duty Of Care ◽  
Remedial Action ◽  
England And Wales ◽  
Risk Of Injury ◽  
Statutory Duty ◽  
Breach Of Duty

AbstractSixty years have passed since occupiers in England and Wales were placed under a statutory duty to keep visitors to occupied premises reasonably safe. The legislation, however, did not detail the exact operation of this duty of care. The case law, expected to fill in the gaps, has arguably developed without sufficient consistency and/or predictability. This apparent confusion can be remedied through applying a systematic test to the question of whether a breach of duty has occurred. The test follows the verification that the case falls within the field of occupiers’ liability because of the presence of a danger attributable to the state of the premises. It consists of three consecutive stages which ask: (1) whether the risk of injury was foreseeable; (2) whether the occupier could reasonably have been expected to have addressed this very particular risk; and (3) whether any remedial action the occupier actually took was appropriate.

scholarly journals THE IMMUNITY OF A STATE IN INTERNATIONAL PRIVATE LAW: THE LATEST TENDENCY OF LEGISLATION AND JUDICIAL PRACTICE

2020 ◽  
Vol 11 (87) ◽  
Author(s):  
Mariia Drahan ◽  
Keyword(s):  
Current Approach ◽  
The State ◽  
Private Law ◽  
Sovereign State ◽  
National Legislation ◽  
Judicial Practice ◽  
International Private Law ◽  
The Absolute ◽  
Private Entity ◽  
The Government

This article is devoted to the research of such well-known nowadays phenomenon as the immunity of a state and other different aspects, related to it. Also there was explored different approaches to the basis for granting states rights to the immunity and its application. According to explored sources there are two main approaches to this problem – the immunity of a state depends on its recognition as a sovereign state by other states (their governments), and another one – the immunity of a state depends mostly on the possibility of the government to control the territory of the state and its authority among citizens, but the most right and relevant approach, to our mind, is the combination of both of these approaches. In this article there was analyzed different approaches to the immunity of a state such as the absolute immunity of a state and the functional (limited) immunity of a state. We explored our national legislation to reveal, which approach is more relevant for Ukraine. Thus, as we decided, nowadays prevailing in Ukraine is the approach of the absolute immunity of a state, at least in the main legislative act – the Law of Ukraine «On International Private Law», related to relations within the international private law. At the same time, as we analyzed, in different Ukrainian legislative acts there are not absolutely the same provisions on the immunity of a state. Also explored national judicial practice of the Supreme Court, related to the well-known case, nevertheless, proves, that Ukraine made and still makes some real attempts to change its current approach to the immunity of a state from the absolute immunity of a state to more liberal approach of the functional (limited) immunity of a state, moreover, it is really important within the European integration of Ukraine and the participation of the state of Ukraine in the foreign economic activity as a private entity. Considering all mentioned above, there was made appropriate, relevant conclusion on the latest tendency of the national legislation and the judicial practice on this issue.

Issues in the Law of Torts

1990 ◽  
Vol 24 (3-4) ◽  
pp. 651-656
Author(s):  
Israel Gilead
Keyword(s):  
Conceptual Framework ◽  
Internal Structure ◽  
Recent Article ◽  
Tort Law ◽  
Case Law ◽  
The State ◽  
Statutory Duty ◽  
The Law ◽  
The Relationship

In a recent article, Prof. Izhak Englard reviewed the salient developments in tort law over the last decade. These developments are:(a) Deciding the question of the internal structure of the Civil Wrongs Ordinance as regards the relationship between the general and the specific torts.(b) Extension of tortious liability for negligence, and the crystallization of the conceptual framework of that tort.(c) Expanding the scope of the tort of breach of a statutory duty by allowing the unimpeded inclusion of statutory duties within the scope of the Civil Wrongs Ordinance.(d) Removal of the umbrella erected by the case law in order to shield the State and its agencies from liability for negligence and the breach of a statutory duty, and the equation of the position of the State to that of other tortfeasors.

Tort Law: Text and Materials

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Product Liability ◽  
Economic Loss ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
The Subject ◽  
Specific Duty ◽  
Selection Of

Tort Law: Text and Materials brings together a selection of carefully chosen extracts from cases and materials, with extensive commentary. Each section begins with a clear overview of the law, followed by illustrative extracts from case law and from government reports and scholarly literature, which are supported by explanation and analysis. The authors start by introducing the subject, and then examine intentional interference with the person before moving on to liability for negligence. Their analysis provides an overview of negligence liability in general, and then addresses in turn breach of duty, causation and remoteness, defences to negligence, and specific duty of care issues (psychiatric illness, economic loss, omissions and acts of third parties, and public bodies). In the following chapter, the authors consider the special liability regimes for employers and occupiers, as well as product liability and breach of statutory duty. The focus then switches to nuisance and the rule in Rylands v Fletcher, defamation, and privacy, before turning to vicarious liability, and damages for personal injury and death. Finally, they explore how tort works in practice.

Rights-based justifications for the tort of unlawful interference with economic relations

Legal Studies ◽  
2008 ◽  
Vol 28 (2) ◽  
pp. 215-233
Author(s):  
JW Neyers
Keyword(s):  
Basic Principle ◽  
Tort Law ◽  
Case Law ◽  
The Other ◽  
Third Party ◽  
Private Law ◽  
Economic Relations ◽  
Public Rights ◽  
Unlawful Interference ◽  
The Right

The tort of unlawful interference with economic relations is anomalous since it allows a plaintiff to sue a defendant for a loss that is occasioned by an unlawful act committed by that defendant against a third party. This parasitic liability is seemingly in violation of the basic tort law principle that in order to make out a claim what the plaintiff must show is a violation of her own rights, not merely a wrong to someone else. Thus, it appears that the tort is an instance of damnum absque injuria. This paper examines whether this is in fact the case by examining if there are any rights-based theories that can explain the tort in a way that is consistent with basic private law principle. In other words, is it possible to find an independent right of the defendant that has somehow been violated, one which explains why the defendant is able to sue in their own right? Upon examination, it appears that the ‘right to trade’, ‘remoteness’ and ‘abuse of right’ theories are largely incapable of providing such an explanation since they display many seemingly insurmountable problems of coherence and fit with the existing case-law. More promising are the arguments that the tort is a justified exception to basic principle or that it is an example of public rights being vindicated in private law, yet each of these theories is also problematic in some respects. The overall thesis of the paper is that the tort of unlawful interference with economic relations is radically under-theorised and that it, and the other economic torts, could benefit tremendously from more intense academic examination.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘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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