Negligence Per Se and Unaccounted Risks

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Common Law ◽  
Causal Link ◽  
Per Se ◽  
Background Risks

This chapter considers cases of “negligence per se” and the problem of unaccounted risks. In general, breaching the statute constitutes “negligence per se.” When the injurer's breach of the statute harms people, courts systematically compensate the victims explicitly targeted by the legislation and not other victims, creating a misalignment. The chapter first examines the doctrine of negligence per se before discussing the problem of unaccounted risks. It then describes an approach that it argues is wrong in common law negligence: the tendency of courts to treat foreground risks created by the injurer as wrongful and impose liability accordingly, while ignoring background risks. It also explores a condition for establishing liability, known as the “causal link,” and asks why courts account for the foreground risks while disregarding the background risks.

Dangerous things and the Non-Natural User of Land

1929 ◽  
Vol 3 (3) ◽  
pp. 376-397
Author(s):  
W. T. S. Stallybrass
Keyword(s):  
Common Law ◽  
True Nature ◽  
Moral Qualities ◽  
The Common ◽  
Per Se ◽  
The Law

It is perhaps true that one of the most important moral qualities of a man, especially an undergraduate, is a knowledge of where to ‘draw the line’; it is certainly true that one of the most essential parts of a lawyer's equipment is the capacity for drawing distinctions correctly. The whole framework of the law is based upon distinctions, and the drawing of false distinctions is as disastrous as is the failure to draw those that are based upon sound reasoning. It is the object of this article to consider, very tentatively, two distinctions which have been introduced into the common law relating to injury done to others by the property of the defendant: in the first place, the distinction between those things which are dangerous per se and those things which are dangerous sub modo, and in the second place, the distinction between the natural and the non-natural user of land. I shall then endeavour to consider the relation of these two problems to each other. But there will be no attempt to state the nature or extent of the liability that arises; for example, I shall not consider the true nature of the rule in Rylands v. Fletcher or the extent of the duty owed by him who deals with dangerous chattels, though some light may incidentally be thrown upon such matters.

11. Intentional torts

2021 ◽  
pp. 128-139
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Intentional Actions ◽  
Per Se ◽  
False Imprisonment

This chapter discusses both common law and statute in relation to the torts of trespass to the person: battery, assault, and false imprisonment. These torts have three common characteristics: they are the result of intentional actions, take the form of direct harm, and are actionable per se, that is, without proof of damage. An additional intentional tort is derived from Wilkinson v Downton (1897), the wilful infliction of physical harm upon the claimant by indirect means. This category of intentional harm is also augmented by the Protection from Harassment Act 1997. Defences to the intentional torts are also discussed.

A new chapter in the law of sexual harassment in Malaysia: The emergence of the torts of harassment and sexual harassment

2019 ◽  
Vol 48 (4) ◽  
pp. 191-207
Author(s):  
Abdul Majid ◽  
Sri Yogamalar ◽  
Audrey Kim Lan Siah ◽  
Jane L Y Terpstra-Tong ◽  
Luc Borrowman
Keyword(s):  
Sexual Harassment ◽  
Common Law ◽  
Federal Court ◽  
The World ◽  
The Common ◽  
Per Se ◽  
The Law ◽  
First Time

In a landmark case in 2016, Malaysia’s apex court, the Federal Court, explicitly recognised for the first time, the common law tort of sexual harassment. Actually, the Federal Court did more than that; its recognition of the common law tort of sexual harassment is built on its recognising the common law tort of harassment. The recognition of the tort of harassment has escaped notice because attention has been concentrated on the tort of sexual harassment. This article analyses the Federal Court’s exposition of the tort of sexual harassment to reveal that the exegesis itself acknowledges the existence of the tort of harassment per se. The tort of harassment that the Federal Court sent out into the world is largely a creature of its English common law ancestry.

scholarly journals Preventing lawful and decent burial: resurrecting dead offences

Legal Studies ◽  
2016 ◽  
Vol 36 (2) ◽  
pp. 354-374 ◽  
Author(s):  
Imogen Jones ◽  
Muireann Quigley
Keyword(s):  
Common Law ◽  
Historical Context ◽  
High Profile ◽  
Administration Of Justice ◽  
The Common ◽  
Per Se

Recent high-profile convictions have called attention to the common law offence of preventing a lawful and decent burial. This offence, which can only be found in its modern incarnation since 1974, is being used with increasing frequency. We argue that there is, however, little justification (or need) for criminalising the prevention of burial per se. The historical context of the need to regulate the disposal of corpses is no longer relevant. Moreover, the ambit of the offence is such that it cannot be argued to be targeting acts of intentional disrespect to deceased bodies. We suggest that acts which intentionally impede the administration of justice are rightly criminal, but other offences already deal more appropriately with these. We conclude that the contemporary use of the offence of preventing a lawful and decent burial contributes to an unnecessary proliferation of overlapping offences, providing prosecutors and juries with a way to assign liability to a person whom they suspect, but cannot prove, is guilty of more serious charges.

A Sketch of the Off ences Committed under the Provoked Temporary Insanity in Common Law Countries

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 158-166
Keyword(s):  
Common Law ◽  
Legal Regulation ◽  
Causal Link ◽  
Theory And Practice ◽  
Law System ◽  
Starting Point ◽  
State Of Mind ◽  
Actus Reus ◽  
The Common ◽  
Temporary Insanity

● In common law countries, which as a rule do not have codified criminal legislation, or where it exists, offences committed under the provoked temporary insanity are not treated as a separate type of wrongdoing (delictum sui generis). Criminal theory and practice considers them as a particular example of privileged homicide related to manslaughter but not the murder. ● Actus reus of offences committed under the provoked temporary insanity (as a kind of privileged homicide) consists of following objective elements: a) conduct, result (i.e. death), causal link between them and any other facultative element; b) provocative behavior committed by the victim; c) causal link between the victim’s behavior and the perpetrators provoked conduct (double causation). ● Mens rea of the offences in question pertains to both subjective elements characteristic to manslaughter: a) recklessness and b) extreme temporary emotional excitement, which might be either explained or justified on rationale basis. The verification of rationality depends on the “reasonable man” standard and how would he behave in the same situation. ● As a starting point, for the classification of mental element traditionally is applied M’Naghten case. Although it focuses on the perpetrator’s capacity to understand wrongfulness of conduct, to be responsible for his crimes, it can be directly applied to the offences, committed under the provoked temporary insanity considered as a serious situational disorder of activity of psychic or state of mind. ● Legal regulation of an offences committed under the provoked temporary insanity is entirely differently constructed within the common law countries in comparison with other legal systems, including Georgian Penal Code. The common law approach is hard to be considered as a successful one, as it is not always efficient in terms of theoretical and practical considerations. ● The main shortcoming of common law system is related to its ambiguity, derived from abundance of value judgments, tests, fictions and criteria.

11. Intentional torts

2017 ◽  
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Intentional Actions ◽  
Per Se ◽  
False Imprisonment

This chapter discusses both common law and statute in relation to the torts of trespass to the person: battery, assault, and false imprisonment. These torts have three common characteristics: they are the result of intentional actions, take the form of direct harm, and are actionable per se, that is, without proof of damage. An additional intentional tort is derived from Wilkinson v Downton (1897), the wilful infliction of physical harm upon the claimant by indirect means. This category of intentional harm is also augmented by the Protection from Harassment Act 1997. Defences to the intentional torts are also discussed.

Actions on the case for negligence

2019 ◽  
pp. 603-639
Author(s):  
John Baker
Keyword(s):  
General Principle ◽  
Common Law ◽  
Public Places ◽  
Reasonable Care ◽  
Per Se

This chapter shows how actions on the case were used to obtain compensation for various forms of harm caused by negligence even when there was no undertaking to use care. Early examples were those brought on ‘the custom of the realm’ against innkeepers and those who failed to control domestic fires. The arguments over what defences could be pleaded in such actions show that liability was generally strict. Although a later custom of the realm was invented for use against carriers, it was not necessary to formulate more customs, since a custom prevailing throughout the realm was common law. Miscellaneous examples are found of actions for negligence per se, for instance in respect of accidents arising from hazards in public places, and these were eventually seen as representing a general principle of common law that everyone should take reasonable care not to injure his neighbour.

11. Intentional torts

2019 ◽  
pp. 125-136
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Intentional Actions ◽  
Per Se ◽  
False Imprisonment

This chapter discusses both common law and statute in relation to the torts of trespass to the person: battery, assault, and false imprisonment. These torts have three common characteristics: they are the result of intentional actions, take the form of direct harm, and are actionable per se, that is, without proof of damage. An additional intentional tort is derived from Wilkinson v Downton (1897), the wilful infliction of physical harm upon the claimant by indirect means. This category of intentional harm is also augmented by the Protection from Harassment Act 1997. Defences to the intentional torts are also discussed.

scholarly journals Penalty Clauses through the Lens of Unconscionability Doctrine: Birch v. Union of Taxation Employees, Local 70030

2010 ◽  
Vol 55 (1) ◽  
pp. 151-164
Author(s):  
Kevin E. Davis
Keyword(s):  
Common Law ◽  
Recent Case ◽  
Relative Difficulty ◽  
Per Se ◽  
Penalty Clauses ◽  
Court Of Appeal

The author reviews the recent case of Birch v. Union of Taxation Employees, Local 70030, in which the Ontario Court of Appeal evaluated—in terms of the doctrine of unconscionability—the enforceability of a clause fining union members who cross picket lines during legal strikes. He applauds the decision as an important step toward jettisoning the traditional common law penalty doctrine, according to which stipulated remedy clauses designed to have an in terrorem effect upon a contracting party are per se unenforceable. The author criticizes the decision, however, for its failure to examine features of the case that would have been ignored under the penalty doctrine but that should have been prominent under the unconscionability doctrine. These features include: other provisions of the contract, the relative difficulty of arriving at “a genuine pre-estimate of the loss” as opposed to a “reasonable penalty”, and the process by which the contract was formed. The author concludes that, in failing to examine these features, the court missed an opportunity to clarify the changing law on the enforceability of stipulated remedy clauses.

Criminal Antitrust

2016 ◽  
Vol 61 (4) ◽  
pp. 599-610
Author(s):  
Charles D. Weller
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Criminal Investigation ◽  
Antitrust Case ◽  
Criminal Defense ◽  
The Supreme Court ◽  
Per Se ◽  
Accepted Practice ◽  
Restraint Of Trade ◽  
Antitrust Division

In the crucible of defending a criminal antitrust case working with outstanding criminal defense lawyers soon after the Supreme Court revolutionized sentencing law by holding the Constitution requires the jury, not the judge, to decide key sentencing fact issues in Booker and related cases led to areas of criminal constitutional law outside the usual purview of antitrust. This unusual mix of law and people combined to create the discovery of five new constitutional defenses contrary to long-accepted practice in criminal antitrust that can be asserted to the Antitrust Division early in an antitrust criminal investigation, in motions to dismiss an indictment, before or at a charging conference and otherwise: (1) The standard antitrust practice of the judge, not the jury, deciding the “naked agreement” element of a per se crime is unconstitutional. (2) The standard per se antitrust jury instruction that conclusively presumes the statutory restraint of trade element of the crime is unconstitutional. (3) The standard antitrust practice where the antitrust division, not the grand jury, decides the “naked agreement” element is unconstitutional. (4) “Naked agreement” facts are “essential facts” that must be included in the indictment or the indictment is defective and unconstitutional. (5) All per se crimes are common law court created crimes, and thus unconstitutional because only Congress can create crimes.

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