Elements Of Liability Research Articles

The Civil Liability from Medical Negligence of Doctors Treating Complications of Coronavirus in the English Law / A Comparative Study with the Iraqi Civil Law

The Author has tried hard in this study to make a logic comparison between two different legal systems. That is to say the English common law, considered the leading system among other Anglo-American ones. And the Iraqi civil law highly affected and influenced by both the Islamic jurisprudence and the Egyptian civil law. It is worth-bearing in mind that the English common law includes many types of torts and the civil liability arising from them, including the tort of negligence in general. The general principles applied to which, can also be applied to medical negligence in particular. After the wide-spread dissemination of the coronavirus the British national health services organ (NHS) has given the cases of the doctor's treating the complications of this pandemic an ultimate importance. And the English courts based the civil liability arising from the medical negligence on three basic elements: the duty of care taken by doctors, the breach of this duty, and the damage suffered by patients. As well as the causation or the causal link between the tort of negligence and the damage or injury. Whereas the Iraqi civil law No. (40) of 1951 deals with the problems related to the civil liability arising from medical negligence of treating patients from coronavirus pandemic, by resorting to the general rules of the civil liability from the illegal act, which is based upon three basic elements: the trespass or transgression committed by the wrongdoer, the damage suffered by the victim and the causal link between them. As opposite to the Egyptian civil law No. (131) of 1948, which considers the first element of this liability as the fault rather than the trespass or transgression. After discussing the attitudes adopted by both the English and Iraqi laws, the author recommends that the Iraqi legislator should adopt the attitude taken by the English law, and let the Act of God deny both the fault element and the causation element of the civil liability arising from medical negligence. And also let the plea volenti non fit injuria deny both the fault element and the causation element of the civil liability of the defendant doctor arising from medical negligence.

Wprowadzenie do zagadnienia deliktowej odpowiedzialność za szkody na osobie w systemie common law, ze szczególnym uwzględnieniem Anglii i Walii

The article discusses the foundations of tortious liability for personal injury in the common law system, the conditions for establishing such liability, methods of discharge from such liability and how differently these issues are treated in various common law countries. Further, the article explains the essential elements of liability: duty of care, breach of this duty which causes someone’s injury and causation that is a direct causal relationship between breach of duty and injury. The legislation of England and Wales under which this institution developed was taken as a basis for deliberations. However, against this background some American, Canadian and Australian approaches were also discussed. The article concerns important issues, though rarely debated in the Polish legal literature, and constitutes an important piece of knowledge for a legal scholar providing professional insights and prompting both axiological and purely practical deliberations

OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.
 But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.

Psihički uticaj i kauzalnost u odštetnom pravu

Causation is the prerequisite for establishing tort liability and the presumption for damage attribution to a particular defendant. Physical causation is often indisputable but psychological influence is largely problematic because people respond differently to the same stimuli, thus making causal uncertainty inevitable. Induction, incitement, intimidation, persuasion, provocation or seduction are all different, and they need to be valued accordingly. Damage caused by psychological influence is challenging because it sparks a key question: who is to blame-the person who succumbed to influence, or the "influencer" who exerts his psychological impact on another? The issue of causation is here intertwined with other elements of liability, such as culpa and wrongfulness. After providing an overview of Roman law on this matter, the article describes various relations in which the influencer, the tortfeasor and the plaintiff can find themselves regarding mutual psychological stimuli. The major forms and intensity of psychological influence are illustrated by cases from comparative judicial practice. Due to its immaterial nature, psychological influence calls for tailor-made evaluation criteria aimed at determining the legally relevant cause of specific damage (provocation formula). Moreover, the over-extensive concept of psychological influence may lead to unjustified burden for the influencer.

Liability for Unintentional Nuisances

The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.” Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong. While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.

Models of Negligence – The Debate in Israel’s Supreme Court

AbstractA model of negligence in common law jurisdictions is a conceptual structure that basically seeks to align the three legal concepts used by courts to administer negligence law with the three substantive elements that constitute, justify and limit negligence liability. The three legal concepts are carelessness, legal causation (assuming factual causation) and duty. The three substantive elements are undesirable conduct, a sufficient link between this conduct and harm, and the desirability of liability. Another major task of a model of negligence is to explain the role and meaning of the foreseeability requirement in each concept and element of liability. The traditional model of negligence, identified with the sequence duty-breach-causation, is characterised by the double role that is assigns to the duty concept. This concept is aligned both with the element of undesirable conduct (conduct is undesirable only when breaching a pre-existing duty), and with the element of desirable liability (liability is desirable only where policy considerations justify a finding of a duty to compensate). Being a servant of two masters, the duty concept is the major source of the confusion and ambiguities that have plagued negligence law for generations. Against this background the traditional model was challenged in 2013 in Israel’s Supreme Court by a Justice who embraced an alternative model formerly suggested by the author. The essence of this new model is to align the duty concept only with the element of desirable liability, severing it from the element of undesirable conduct. Such change arguably disperses confusion and ambiguities, and clarifies the roles and meaning of the foreseeability requirement. In 2014, however, another Justice challenged the new model and called for the reinstatement of the traditional model in a different version. This paper explains why the new 2013 model is preferable to the traditional model in all relevant aspects. The analysis sheds new light on the notions of proximity, special relations, reliance, assumption of responsibility and prima-facie duty. The analysis also serves as a comparative perspective on fault-based liability in continental European jurisdictions.

Rating of Negligence in Legal System of Iran

In tort law negligence is the vital element of liability. Despite the fact that Gradation of negligence is not stated as a general rule in Iranian civil law, in the future laws and regulations, Including civil liability law, maritime law and others, it has been noted on several conditions. There have been some categories of negligence that it has been grouped under certain topics. Here we’ll go deeply through these groupings and the well- reviewed categories of mentioned titles. Thus in this article we will review the examples of rating of fault in Iranian Legal system as well as some comparisons of Iranian legal system with other notable and major systems in the world. Maintain the importance of grouping negligence in the legal systems; we maintain the most important jurists’ ideas as well as doctrine in the scope of this research.

Reasonable Foreseeability of Harm as an Element of Nuisance

A landowner's utility pipe bursts and floods the plaintiff's land. It was reasonably foreseeable that the water would cause flood damage to the plaintiff's land in case of an escape. But it was not reasonably foreseeable that the pipe would burst and, hence, that there would be an escape of water. Can the landowner be liable in nuisance? This paper explores the conceptual implications of the proposition that reasonable foreseeability of harm is an element of liability in nuisance. It argues that, if reasonable foreseeability of harm is an element of nuisance, then nuisance can no longer be thought of as a strict liability tort.

Становление и особенности формирования компенсационной функции в российском праве

Compensation function of rules of law is considered at various stages of formation and development of the Russian state and the Law. The legal norms in the Ancient Russian law which expressed compensation function are identified and analyzed. In the Ancient law the opportunity to protect economic as well as moral benefits was fixed. Standards of Russian Truth performed the compensatory function. In the study of the penal system of that period the elements of liability and compensation of non-pecuniary damage are identified. It is suggested that modern legal institutions of compensation for material and moral (non-property) damage originate from the earliest written records of the ancient Slavs. The improvement and strengthening of the compensation standard functions contained in the Code of Law in 1497 and 1550 are analyzed. There is a significant development of compensatory function in the rules the Conciliar Code of 1649. The author considers the further development of the compensation function of the law in connection with the adoption of the Law "On conscientious possession" 1851. The legislation of the Soviet state which was used exclusively for compensation for material damage is analyzed. There is a growing function of the compensation law in connection with its reform of 1990 and the construction of all branches of the law on the principle of full compensation for losses.

Civil Liability Arising from Damage Caused by Products

This paper intends to identify the main legal issues that regard the recognition of compensation for damages; if a product or any of its component parts are defective, its manufacturer may be liable for damage under the Consumer Protection Act (CPA) or the common law of negligence, caused by a wrongful act of another. The first part of the paper aims to give general information on the provisions of the Civil Code with respect to liability arising out of products. This institute is an additional guarantee for the protection of consumers, in addition to special legislation (for example: Law no. 9135, dated: 11.9.2003 "Consumer Protection") existing in this field. With the purpose of handling these cases the civil rights law has provided civil liability arising from products, in order to be clear and well-defined the responsibility of subjects that will be considered as such. Forecasting these provisions serves as a guarantee not only for the protection customers’ of health or property but also to increase the quality standards of marketing of products by manufacturers. In the second part we shortly treat the constituent elements of liability arising from products and investigating potential cases of wide occurrence, which have arisen from the doctrine to which we must say that, have been mostly of foreign origin. As part of the civil liability arising from the products are also the unfair competition actions (Art. 638-640 of the Civil Code) and fraudulent publications (Art. 635-637 of the Civil Code). These are addressed in a general way at the end of this paper and finally this paper closes with indemnification and the treatment of types of damages caused to consumers as a result of the faulty produced goods or by low quality services and the appropriate rewards for those damages. DOI: 10.5901/mjss.2015.v6n4s3p623

The Elements of Liability in a Trails Act Taking: A Guide to the Analysis

The Elements of Liability in a Trails Act Taking: A Guide to the Analysis

A Genetically Informed Study of the Covariation Between the CBCL/6-18 DSM-Oriented Problem Scales and the Competence Scales

In 398 twin pairs belonging to the population-based Italian Registry, we investigated by the monozygotic twin intrapair differences model and bivariate designs whether the phenotypic correlations between CBCL/6-18 problem behaviours and competencies could better be accounted for by direct, causal effects, or by the presence of latent etiological factors, acting simultaneously as elements of risk/protection for psychopathology and competencies. All zero-order correlations between six CBCL DSM-oriented scales (DOS) and three competence scales (CS) were negative and small-to-moderate. After implementing multiple regressions we found robust enough prediction only for ADH DOS on school CS, and for anxiety DOS on social CS. Results from the intrapair differences model indicated shared elements of liability, rather than direct causation, as more likely explanations for the negative phenotypic correlations between these emotional/behavioural problem and competencies scores. Bivariate analyses indicated shared genetic factors that influence simultaneously the emotional/behavioural problems and the competencies domains as the best explanations for the phenotypic covariations between DOS and CS.

FACT AND LAW IN THE CAUSAL INQUIRY

This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.

Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon

Chapter 2 of the Australian Commonwealth Criminal Code codifies the general principles of criminal liability. All federal criminal offenses, whether or not they appear in the substantive chapters of the Code, are subject to its provisions. Chapter 2 is based on article 2 of the American Model Penal Code and the equivalent general part of the UK Draft Criminal Code. It is, however, a more completely articulated statement of the elements of liability than either of its predecessors. This paper examines the relationship between physical and fault elements in chapter 2. It takes a Benthamite view of its provisions. Though chapter 2 was conceived as a legislative restatement of common law principles of criminal justice it can be expected to play a more significant role as a manual of instructions for the expression of legislative intentions. Chapter 2 enables the legislature to reclaim from courts the authority to define the grounds of criminal liability. There remain, however, areas of uncertainty resulting from the mismatch between the articulate clarity of most chapter 2 provisions and others that envisage the exercise of unstructured judicial discretion. Two issues in particular are discussed: liability for ulterior intentions and the effect of error or ignorance of law on criminal responsibility. The paper proposes enactment of a defense of reasonable mistake of law as a supplement to chapter 2. It concludes with an expression of hope that Australian criminal law theory might be based on a more unified consideration of legisprudence and common law.

Environmental Liability of Parent Companies and Subsidiaries under German Law

Summary: The bases of liability under German environmental law are as complex as are the addressees of liability. The responsibilities do not exclude each other but rather often apply parallel to each other. Under German civil law, the main emphasis is on the liability of the enterprise. Parallel to that, company bodies and executive employees may be held liable. Employees are liable for tortious acts committed wilfully or by gross negligence; however, they are solely liable for compensation claims vis-à-vis the enterprise but not vis-à-vis third parties. In the internal relationship between parent company and subsidiary, the parent company is always liable if the acts of the subsidiary which led to a realisation of the elements of liability were committed by order of the parent company or if another type of influence of the parent company on the acts of the subsidiary can be established. In contrast to that, liability under German criminal law, as a rule, applies as to the individual employees of the enterprise. With respect to the avoidance of liability, only a combination of various measures, such as prohibitions and the development of more self-responsibility and self-control of the enterprises, will lead to the greatest success. In particular the principles of the eco-audit should be applied in each enterprise even without an official participation in the eco-audit system.

Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?

In criminal law theory, as in other kinds of theorizing, there is a powerful temptation (or, less question-beggingly, a powerful disposition) to search for a grand, unitary theory of criminal liability: some unitary account of what we are or should be liable for, of the conditions under which we are or should be held liable, of the basic structure and elements of liability, which applies across the whole range of criminal offenses. Such theorizing is typically an exercise in censorial rather than in purely analytical jurisprudence: although theorists of a Herculean disposition might claim that their account makes best sense of the values and aspirations that can be discerned within our existing legal systems and structures, their claim has in the end to be that this is how the law ought to be, not that this is how the law actually is in its contingent historical complexity. Such theories thus offer us, as any good normative theory should offer us, a standard against which we can assess and criticize existing legal doctrine and practice. The most ambitious theory would specify necessary and sufficient conditions of criminal liability: for instance that we are liable for and only for the choice to do or to risk doing what the law defines as the actus reus of a crime. Others, more modestly, claim only to specify a necessary condition of liability: for instance that criminal liability always requires, or must always be for, an “act” or a

Causation, Contribution, and Legal Liability: An Empirical Study

LAWRENCE M. SOLAN [*] JOHN M. DARLEY [**] I INTRODUCTION This article presents empirical evidence of the ways people compare judgments of liability with judgments of causation and contribution. Specifically, the article reports the results of experiments designed to show whether people regard causation and enablement as necessary elements of liability. As suggested by past psychological research, the experiments also test what roles other factors, such as the defendant's state of mind and the severity of the victim's injury, play in people's judgments of both causation and liability. The experiments ask people their judgments concerning types of cases that the law does not treat uniformly. In one type of case, the defendant has left his keys in the ignition of his car. Someone steals the car and gets into an accident. In the other type, a social host sends an intoxicated guest out in a car to drive another guest home and the guest gets into an accident. Both of these scenarios illustrate what Robert Rabin has called [1] The defendant does not directly cause the harm sets the stage the individual who does. As discussed below, courts disagree not only as to whether such cases should generate liability the enabler, also as to how these cases should be conceptualized in causal terms. The results of the experiment show no more uniformity of judgment than the case law. Some respondents thought that there should be liability the enabler, while others disagreed. Nonetheless, the study casts light on some important contemporary debates in the law of torts. First, the results begin to offer an explanation the disagreement in the case law. Courts do not use the expression enabling torts; rather, they decide these cases using traditional tort concepts, such as duty, foreseeability, and proximate causation. [2] For example, some courts deny recovery lack of proximate causation. Others allow recovery on the basis of proximate causation. Still others talk, instead, of duty. Professor Rabin's approach suggests an additional possibility: To the extent that people distinguish between causation and enablement, there may be no cause in fact in these cases. However, because enablement, like actual causation, is a but for relationship, legal thinkers who draw the distinction will find it di fficult to articulate the problem in that way within the taxonomy of conventional tort theory. This article explores the possibility of such alternative conceptualizations. The results of the study show people to be divided as to how they conceptualize these cases. Many respondents appear content to group causation and enablement together and to regard them essentially as components of a general concept of contribution. Those who do distinguish between the two disagree as to whether enablement is an adequate basis to establish liability. Some who see the actor as an enabler not a cause do not assign liability to the actor, while others who see him only as enabling do assign liability. Thus, the uncertainty expressed by the courts perhaps mirrors the difficulty that ordinary language users have with these problems. Second, the experiments strongly suggest that people believe that the amount of harm which a defendant should be held liable depends on the extent of the defendant's contribution to bringing about the harm. In other words, people's naive sense of justice comports with theories of proportional liability. Third, the actor's state of mind predicts liability to some extent, even when the law does not make such distinctions. For example, a willful enabler is typically assigned more liability than is a reckless one. Part II of this article presents a brief outline of the current state of the law concerning cases that can be characterized as enabling torts. The discussion is not intended to be exhaustive. …

False Imprisonment: Elements of Liability: Termination of Original Proceeding

False Imprisonment: Elements of Liability: Termination of Original Proceeding