"Directors' duties" imposed below board level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

"Directors' duties" imposed below board level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

Vindicatory Damages in the Child Welfare Tort Cases

<p>This thesis argues that vindicatory damages should be available in the child welfare tort cases against public authorities. These are cases in which the plaintiffs sue public authorities either for not protecting them from harm when they were children, or where it is alleged that the authority’s employees abused the children while in its care. Vindicatory damages would be intended to mark the wrong to the plaintiff, rather than attempting to compensate the consequences. This thesis argues in support of the availability of a separate head of vindicatory damages in tort law, including negligence, and explores some of the liability issues which arise in these cases, including vicarious liability, liability for omissions and liability in negligence for the way in which a statutory power is exercised or for a breach of a statutory duty. New Zealand's accident compensation scheme is also discussed: it is argued that vindicatory damages in tort law should not be barred by the scheme.</p>

Vindicatory Damages in the Child Welfare Tort Cases

<p>This thesis argues that vindicatory damages should be available in the child welfare tort cases against public authorities. These are cases in which the plaintiffs sue public authorities either for not protecting them from harm when they were children, or where it is alleged that the authority’s employees abused the children while in its care. Vindicatory damages would be intended to mark the wrong to the plaintiff, rather than attempting to compensate the consequences. This thesis argues in support of the availability of a separate head of vindicatory damages in tort law, including negligence, and explores some of the liability issues which arise in these cases, including vicarious liability, liability for omissions and liability in negligence for the way in which a statutory power is exercised or for a breach of a statutory duty. New Zealand's accident compensation scheme is also discussed: it is argued that vindicatory damages in tort law should not be barred by the scheme.</p>

Obliging Platforms to Accept a Duty of Care

This chapter introduces the statutory duty of care model of regulation proposed by Carnegie UK Trust and which underpinned the approach of the UK Government’s Online Harms White Paper. Based on the approach found in the Health and Safety at Work Act 1974, the proposal is for systems-based regulation which has two aspects. The first that it is the platform that should be regulated not the content, including the design of the platform and the operation of the business. Secondly, the duty of care implies a risk assessment so that reasonably foreseeable harms are avoided where possible or mitigated. Perfection is not required and this regime does not impose liability on the platform for individual items of content. An independent regulator was envisaged, one that had a double role: enforcement and the development of good behaviours through codes of practice.

Australian Directors' Duties: What Does It Mean to Say They are Public Duties?

This article pursues the meaning and effect of what are (in Australia, at least )long-standing public duties of directors. It argues that there has been and continues to be, a slow evolution from an exclusively private character, to a hybrid public and private content in Australian directors’ duties. That duties may be both public and private, does not deny the truth of either of those characters. Instead, using the statutory duty of care in s 180(1) of the Corporations Act, this article analyses the juristic features and public elements that animate the duty and its enforcement sanctions. The cardinal legal and practical question of to whom the public directors’ duties are owed, both to no one in particular and to all the world, rather than only to the company, is also considered.

LIABILITY OF THE STATE FOR RAPE BY A POLICEMAN: THE SAGA TAKES A NEW DIRECTION Minister of Safety and Security v F 2011 3 SA 487 (SCA)

The locus classicus and trend-setting decision for the vicarious liability of the state for the rape of a woman by a police official, is certainly K v Minister of Safety and Security. Here the plaintiff (K), a young woman, became stranded late at night. Three on-duty police officials, dressed in full uniform, offered to take her home in a police vehicle. On the way she was raped by all three of them. O’Regan J held that the state was vicariously liable for the conduct of the policemen. According to the standard test for vicarious liability, which was formulated in Minister of Police v Rabie, an employer may only escape vicarious liability if the employee, viewed subjectively, has not only exclusively promoted his own interests, but, viewed objectively, has also disengaged himself from the duties of his contract of employment to such an extent that a sufficiently close connection between the employee’s conduct and his employment is absent. Applying this test as informed by the constitutional Bill of Rights, O’Regan J found that although the policemen exclusively promoted their own interests by raping the plaintiff, a “sufficiently close connection” nevertheless existed between the conduct of the police and their work to hold their employer vicariously liable, for the following reasons: there was a constitutional and statutory duty on the state as well as the policemen to prevent crime and to protect members of public; the policemen offered to help the plaintiff and she acted reasonably by accepting the offer and trusting them; and the conduct of the policemen consisted simultaneously of a commissio (the brutal rape) and an omissio (their failure to protect her against the rape).

Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

12. Breach of statutory duty

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.

Casebook on Tort Law

Kidner’s Casebook on Torts provides a comprehensive, portable library of the leading cases in the field. It presents a wide range of carefully edited extracts, which illustrate the essence and reasoning behind each decision made. Concise author commentary focuses the reader on the key elements within the extracts. Statutory materials are also included where they are necessary to understand the subject. The book examines the tort of negligence including chapters on the basic principles of duty of care, omissions and acts of third parties, the liability of public bodies, psychiatric harm, economic loss, breach of duty, causation and remoteness of damage and defences. It goes on to consider three special liability regimes—occupiers’ liability, product liability and breach of statutory duty—before turning to discussion of the personal torts and land torts. It concludes with chapters on vicarious liability and damages.