Foreseeability Of Harm Research Articles

THE CABO DELGADO INSURGENCY AND MOZAMBIQUE’S OBLIGATION TO PROVIDE FOREIGN INVESTORS WITH FULL PROTECTION AND SECURITY

Mozambique is currently facing a violent and rapidly escalating insurgency within its Cabo Delgado province. The province is rich in mineral resources and has attracted substantial foreign investment. In terms of most of its bilateral investment treaties, Mozambique has agreed to provide foreign investors with full protection and security (FPS) within its territory. This article explores the extent of a state’s obligations to foreign investors under the FPS standard in international investment law. It finds that tribunals have adopted diverging interpretations of the standard and critiques several of these approaches. In particular, it expresses concern over the extent to which investment law forces the state to choose between protecting its people and protecting investors’ assets. It also reflects on what these diverging interpretations mean for Mozambique and the extent to which it may be liable to compensate investors for harm caused to their property by the insurgents. It is argued that investment tribunals should be alive to the various demands on state resources and not simply base liability on the foreseeability of harm. It also concludes by suggesting that Mozambique should seek an agreement with its treaty partners to temporarily restrict the extent of its liability under the FPS standard.

PENERAPAN FORESEEABILITY OF HARM DAN PRECAUTIONARY PRINCIPLE DALAM PENGATURAN SAMPAH PLASTIK SEBAGAI LAND-BASED SOURCE

Marine pollution caused by plastic waste is regarded as a land-based sources type of marine pollution. The current regulation of land-based sources pollution, especially plastic waste is still too general and not effective. This legal research aims to analyze the existing international regulations regarding land-based pollution and how to implement the foreseeability of harm and precautionary approach principles for specific international arrangements regarding plastic waste pollution in the future. This article concludes that the application of the principle is important to ensure the effectiveness of the regulation regarding plastic waste, since the nature of the principle is to prevent.

HIV, confidentiality, and duty to protect: Considerations for psychotherapists in the age of treatment as prevention.

Confidentiality and duty to protect are complex issues for psychotherapists treating clients with HIV. The application of the Tarasoff ruling to situations involving HIV has long been debated with questions about how the Tarasoff principles of identifiability of the victim, foreseeability of harm, and necessary protective action apply to HIV within the context of psychotherapeutic relationships. The complexity of these debates is compounded by advances in HIV medicine including the availability of antiretroviral therapy and pre- and postexposure prophylaxis in addition to the current state of knowledge about treatment as prevention. The purpose of this article is to revisit Chenneville's (2000) decision-making model on HIV, confidentiality, and duty to protect in the age of pre- and postexposure prophylaxis and antiretroviral therapy. This revised model may serve as a critical framework for psychotherapists providing services to clients with HIV. (PsycINFO Database Record (c) 2020 APA, all rights reserved).

The complexity of failure: Implications of complexity theory for safety investigations

Complexity theory suggests that we see performance as an emergent property, the result of complex interactions and relationships. This can clash, however, with what stakeholders see as legitimate and normal in accident investigations. When systems fail, it is still common to blame components (e.g. human errors) and when they succeed spectacularly, to think in terms of individual heroism (e.g. the A320 Hudson River landing). In this paper, we lay out the contrast between a Newtonian analysis of failure that can be recognized in many efforts at safety analysis and improvement. It makes particular assumptions about the relationship between cause and effect, foreseeability of harm, time-reversibility and the ability to produce the “true story” of an accident. With inspiration from complexity theory, failures are seen as an emergent property of complexity. We explore what that means for safety science and work towards a post-Newtonian analysis of failure in complex systems.

Are Migratory Birds Extending Environmental Criminal Liability

Environmental statutes frequently include criminal provisions as a means of enforcing their regulations. However, these provisions often include little if no mens rea requirement. As with any form of criminal liability that approaches strict liability, courts must therefore somehow insure that convictions satisfy constitutional due process concerns. During the last century, and accompanying the rise of regulatory statutes, the court developed the public welfare doctrine as a method of justifying the lack of a mens rea requirement for certain types of crimes. These crimes, known as public welfare offenses, involve regulations so potentially dangerous to public health and safety that the court was willing to presume that the allegedly criminal actor had knowledge of his wrong doing, thus satisfying due process. United States v. Apollo Energies, Inc.’s, interpretation of the Migratory Bird Treaty Act, demonstrates another justification for a lack of a mens rea requirement. However, for a criminal offense that did not fall under the coverage of the public welfare doctrine: an offense that does not affect the public health, and which features a causation element. To satisfy due process, the Tenth Circuit borrows several elements embedded in the public welfare doctrine: foreseeability of regulation and foreseeability of harm. The use of these elements, and the Tenth Circuit’s willingness to apply them outside of the public welfare setting, illuminates when courts might find liability for future environmental regulatory crimes.

Alcohol Provider Liability in Canada and the United Kingdom: Legal and Cultural Influences

This article describes the extent of alcohol provider liability in Canada and the United Kingdom. While the Canadian courts focus their analysis on the foreseeability of harm, the UK courts determine the duty of care based on an alcohol provider's assumption of responsibility. This has led to a much broader, more paternalistic duty of care for alcohol providers in Canada. Commercial providers have been subject to a broad duty of care since the 1970s, and the lower courts have more recently considered imposing liability on so-called ‘social hosts’ in certain circumstances. In contrast, the UK courts have been hesitant to impose any kind of alcohol-related liability, commenting that adults are responsible for the consequences of their own alcohol consumption. This article explores some of the potential legal and social reasons for this divergence in alcohol provider liability. The wide duty of care imposed on Canadian alcohol providers may be part of a larger trend to expand the duty of care, based on Canada's continuing allegiance to the Anns test. In addition, the divergent approaches may reflect public attitudes and government policies toward alcohol consumption in the two jurisdictions.

Establishing breach of the duty of care in the tort of negligence: 2.

This article discusses the law surrounding breach of the duty of care in negligence. A mistake or error does not necessarily mean legal fault and negligence. Judges look at risks and benefits in determining what would have been the appropriate standard of care to be exercised in the circumstances and may decide that the defendant's conduct was reasonable. There are a number of interrelated factors which judges have to balance and these can be categorized as foreseeability of harm, magnitude of risk, burden of taking precautions, utility of the defendant's conduct and common practice.

The house of lords requires foreseeability of harm for liability for pollution

The house of lords requires foreseeability of harm for liability for pollution

The Duty to Counsel: Reviewing a Decade of Litigation

Twenty-three legal cases from the 1980s were studied. The allegation in each of these cases was that the defendant pharmacist should have done something more than correctly process a prescription to prevent harm to the patient from drug use. Four theoretical models of pharmacist legal responsibility are considered: (1) the policy-analysis model, (2) the professional-standards model, (3) the consumer-expectation model, and (4) the power model. It is concluded that the power model, based on superior knowledge and reasonable foreseeability of harm, best defines the pharmacist's legal responsibility, consistent with established legal precedents.