20. The derivative claim and the rule in Foss v Harbottle

This chapter discusses further aspects of shareholder remedies, namely the common law multiple derivative claim; derivative claims under Companies Act 2006 (CA 2006), Part 11; the reflective loss principle; personal actions at common law; and specific statutory rights under the CA 2006. At common law, a shareholder aggrieved by a breach of duty by a director could bring a derivative claim on behalf of the company, as an exception to the rule in Foss v Harbottle. That common law claim now remains as a common law multiple derivative claim whereas the ‘ordinary’ derivative claim now is a statutory claim under CA 2006, Part 11. This chapter explores both types of derivative claim and assesses their value to shareholders. An important constraint on shareholder recovery is the principle governing reflective loss which has recently been restated by the Supreme Court. This chapter considers the current position in the light of that development.

15. Directors’ liabilities and vulnerable transactions on insolvency

This chapter considers directors’ liabilities on a company going into insolvency. Redress for breach of duty by directors is available through summary action for misfeasance (IA 1986, s 212), fraudulent trading (ss 213, 246ZA), and wrongful trading (ss 214, 246ZB). The scope of these provisions is considered in detail together with the relevant case law. Wrongful trading is potentially a valuable remedy but it is somewhat underused. It may be advantageous instead to challenge certain transactions by the directors prior to insolvency; for example, as transactions at an undervalue (s 238) or preferences (s 239). More broadly, the overall conduct of the directors is reviewed in order to determine whether disqualification is appropriate on the grounds, usually, that they are unfit. All of these matters are addressed in this chapter.

14. Directors’ liabilities for breach of duty

This chapter focuses on the extent of a director’s civil liability for breach of fiduciary duty and the liability of third parties involved in some way in that breach of duty. One of the most important issues is the extent of a director’s liability to account. Liability can range from accounting for secret profits to claims for equitable compensation and from personal to proprietary claims. Often, a claim will be affected by limitation issues. It may be complicated by the involvement of third party accessories. Mitigation through reliance on indemnity provisions, insurance and by applying to the court for relief is also considered. The discussion covers: breach of fiduciary duty, liability of third parties, claims for negligence, and managing potential liabilities.

7. Breach of duty: the standard of care

Once it has been established that there is a sufficient relationship between the parties to establish a duty, the question then arises whether the defendant has been in breach of this duty. This involves a number of issues, many of which involve the judgment of the ‘reasonable man’. The defendant’s behaviour must have fallen below the level of the standard of care owed, which defines the level of safety a claimant is entitled to expect. The ‘reasonable man’ may give the impression of certainty where there is none, for whether it is reasonable to take a certain risk involves questions of economic and social policy which are rarely expressed in the law reports.

26. Lenders’ Rights and Remedies

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter concentrates on the rights and powers conferred upon the lender to enforce its security over land. A lender’s rights and remedies arise from the nature of its security, the powers implied by the Law of Property Act 1925, and any express powers. The lender’s right to take possession originated at common law, but is now conferred by s 87(1) of the 1925 Act. The lender’s power of sale and to appoint a receiver are implied by s 101(1)(i) and (iii) of the 1925 Act, respectively and can only be exercised if the borrower has defaulted. The duties that a lender or receiver owes when selling the mortgaged property are explained, as well as the position of a purchaser from a lender or receiver where there has been a breach of duty.

2. Medical negligence

This chapter deals with medical negligence and how claims can be brought in the tort of negligence via three requirements: the defendant owed the claimant a duty of care; the defendant’s performance fell below the standard expected; and that the claimant’s injury was caused by the breach of duty. The duty of care in doctor–patient relationships and in ‘good Samaritan’ situations is considered. The Bolam test is discussed, which is used to judge the standard of care expected from doctors (subject to the Bolitho principle), as well as tests to establish causation, such as the ‘but for’ test. Relevant cases are cited, where appropriate. Criminal negligence is also discussed.

6. Breach of duty

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

8. Breach of duty: the standard of care

This chapter focuses on the second of the requirements necessary to establish a claim in the tort of negligence—breach of duty. Breach occurs where a defendant has fallen below the particular standard of care demanded by the law. This is largely an objective test and is determined by comparing the actions of the defendant to those imagined to be done in the same circumstances by the so-called ‘reasonable man’. The questions to be answered are how the defendant ought to have behaved (what was the required standard of care) and how the defendant did behave (did they in fact fall below that standard).

THE CONCEPT OF TORT LIABILITY IN EDUCATION: WHAT THE TEACHER SHOULD KNOW

<p>The study discussed the concept of tort liability as regards to education with a definite focus on its implication for teachers. Torts was simply described as civil wrong which could range from negligence, intentional and strict tort. Tortious liability arises out of breach of duty primarily fixed by the law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages. School tort liabilities may arise from the following incidents school bus accidents, children injured while crossing school crosswalks, food poisoning from school meals, exposure to hazardous material or chemicals, failure to evacuate children properly, slip and falls on school premises. The study recommended that the teacher should be aware of duties of supervision, duties of instruction, duties to protect and awareness of the health condition of students in the class.</p><p> </p><p><strong> Article visualizations:</strong></p><p><img src="/-counters-/edu_01/0796/a.php" alt="Hit counter" /></p>

6. Breach of duty

This chapter examines breach of duty in negligence. It discusses the factors that courts consider in determining whether defendants are in breach of their duties of care to claimants. In each case, these factors include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person. The chapter considers also special issues involving proof of breach, most importantly in the application of the res ipsa loquitur doctrine.