Tortious Liability Research Articles

Open Content Licensing of Public Sector Information and the Risk of Tortious Liability for Australian Governments

There has been an increasing interest by governments worldwide in the potential benefits of open access to public sector information (PSI). However, an important question remains: can a government incur tortuous liability for incorrect information released online under an open content license? This paper argues that the release of PSI online for free under an open content license, specifically a Creative Commons license, is within the bounds of an acceptable level of risk to government, especially where users are informed of the limitations of the data and appropriate information management policies and principles are in place to ensure accountability for data quality and accuracy.

Directors' Tortious Liability: A Study of Case in Hong Kong and England.

Directors' Tortious Liability: A Study of Case in Hong Kong and England.

Liability of the State and of Public Authorities in Negligence in Israel – A Slippery Slope (in Hebrew)

Liability of the State and of Public Authorities in Negligence in Israel – A Slippery Slope (in Hebrew)

The Public Management of Liability Risks

Contemporary discussions of the relationship between negligence liability and the provision of services by both public and private organizations frequently suggest the emergence of a ‘compensation culture’. Despite empirical evidence that compensation culture claims are somewhat inflated, an anxiety persists that risks of tortious liability may still undermine the implementation of public policy. Concerns about the potential negative effects of liability on public administration frame the problem in various ways. First, there is an anxiety that public authorities may overreact to liability risks by becoming excessively risk averse. Secondly, there is a fear that compensation claiming will divert financial resources away from service delivery and towards the payment of insurance premiums and compensation awards. Thirdly, there is the fear that insurance companies will, as ‘risk bullies’, curtail public service activities. And, finally, there is the suggestion that risk management, including legal risk management, is becoming the dominant mode of government decision-making to the exclusion of professional judgement. This article addresses these concerns through a set of empirical case studies about the management of liability risks associated with road maintenance services. Although our findings suggest that public authorities respond to liability risks in a variety of ways, we found only limited evidence of the above concerns. In general terms, it was a case of public authorities being risk aware and responsive as opposed to risk averse.

Tortious Liability for Released Detainees

Abstract: The possibility of early release from custody is a necessary and integral part of the current English system of detention. An applicant for early release has certain rights to contest a refusal, but a victim of a crime by the released detainee is unlikely to have a claim against the institution responsible. If only the crime and not the victim could reasonably have been foreseen, the institution is not civilly liable in negligence, although it might be under misfeasance in public office. But the European Court of Human Rights appears to consider that Article 2 of the Human Rights Convention requires such liability; and a German case allowed it, despite German law having previously taken a position similar to the English law of negligence. It is argued that English law ought to adopt the same approach.

The Frontier between Contractual and Tortious Liability in Europe: Insights from the Case of Compensation for Pure Economic Loss

Recoverability of pure economic losses stands at the cutting edge of many crucial questions, such as: To what extent should tort rules be compatible with the market orientation of the legal system? How far can tort liability expand without imposing excessive burdens upon individual activity? As a matter of policy should the recovery of pure economic loss be the domain principally of the law of contract? The paper pursues the goal of sketching possible answers to these questions as far as European jurisdictions are concerned. Thus, it first outlines the factual situations where a pure economic loss is likely to occur. The paper then discusses the broad spectrum of differing approaches to this kind of damage in Europe, as well as the basic arguments that favor an exclusionary rule. The survey makes it possible to understand what is common and what is different across European countries on this issue, as well as to evaluate whether, and how legal rules about pure economic loss might be harmonized throughout Europe.

Tortious Liability and the Right to Strike -Focused on Decision of Seoul High Court(2009. 3. 20, 2007NA122775)-

Tortious Liability and the Right to Strike -Focused on Decision of Seoul High Court(2009. 3. 20, 2007NA122775)-

A Brief Introduction to the Principles and Rules for Determining Corporate Criminal Liability

In this paper we try to explain the concepts of contractual, regulatory, tortious and criminal liability, issues that each of these liabilities give rise to, as well as the principles and rules applicable for determining the responsibilities of the company and of those persons concerned with the company in relation to the criminal liability. We will consider and try to answer questions like: whose acts or omissions, for the purpose of determining the corporate regulatory, contractual, tortious and criminal liability, should be deemed as those of, or should be imputed to the company? When is the knowledge and state of mind of the company’s employees and agents imputed to the company? Can a company kill? We will concentrate on the issue of corporate criminal liability where the courts face major difficulties when determining whose acts or omissions, for the purpose of holding the company liable for crimes requiring mens rea, should be imputed to the company.

Voluntary Assumption of Liability in English Law: A Paradox?

Voluntary assumption of liability is an idea that naturally belongs to the province of the law of Contract. It is the obvious basis of contractual liability. It is not an obvious basis of liability in Tort or Delict, where traditionally obligations have been seen as imposed ex lege. This paper examines recent developments in the English law of negligence that have placed this idea at the centre of tortious liability, analyses this concept and considers the implications of these developments for the future of both Tort and Contract.

CUSTOMARY NON-REFOULEMENT OF REFUGEES AND AUTOMATIC INCORPORATION INTO THE COMMON LAW: A HONG KONG PERSPECTIVE

The judgment of Hartmann J of the Hong Kong Court of First Instance in C v Director of Immigration [2008] 2 HKC 165 (“C”) was ground-breaking. For the first time, a common law court unequivocally recognized a customary norm of non-refoulement of refugees. However, Hartmann J denied that the norm had attained the status of jus cogens and found Hong Kong, always guarded about asylum seekers, to be a persistent objector. His Lordship proceeded to deny the applicants any relief. They had invoked the norm to overcome the Hong Kong government’s practice of leaving the assessment of refugee status to the UNHCR. Hartmann J refused to give the norm any such procedural reach. His Lordship also refused to apply the doctrine of automatic incorporation. Through the prism of C, this article seeks to clarify the application of that doctrine, in the context of persistent objection, a constitutionally prescribed separation of powers, inconsistency between custom and statute, as well as administrative law and tortious liability. The author concludes that C should be reversed on appeal.

Remedies for Wrong Preliminary Injunctions: The Case for Disgorgement of Profits and Only Partial Liability for Harms

What kind of remedies should be available for those enjoined by a wrong preliminary injunction? Assuming that the remedy should be designed to minimize the irreparable harm from a wrong preliminary injunction, two considerations should be taken into account: first, from an ex-ante perspective, the remedy can increase the likelihood that a preliminary injunction is issued only when it is expected to induce irreparable social harms that are lower than those expected if it is not issued; second, from an ex-post perspective, the remedy can contribute to the minimization of the irreparable social harms inflicted when a preliminary injunction was issued. This Article demonstrates that these considerations lead to two central conclusions: (1) it is desirable to award the remedy of restitution, which requires the moving-party to disgorge the benefits obtained at the expense of the defendant by the wrong preliminary injunction; (2) it is unjustified to require the moving-party to compensate the defendant for all harms inflicted due to the wrong preliminary injunction. The analysis also calls for a revision of the definition of irreparable harms. It shows that a deadweight-loss suffered by one party is socially irreparable even if this party's private loss can be cured by a remedy after trial. The available remedies - both when the plaintiff prevails and a preliminary injunction was not issued, and when a wrong preliminary injunction was issued but the defendant prevails - determine only what undeserved-wealth-transfers should be regarded as relevant irreparable social costs. From a broader perspective, the analysis enriches our understanding of restitutionary remedies. In addition to internalizing positive benefits and deterring wrongful conducts, the remedy of disgorgement of profits can also serve to remove improper motives to engage in an overall socially desirable behavior. In the current context, establishing an expansive duty to disgorge profits derived from unsuccessful litigation can mitigate the threat of frivolous suits, without jeopardizing the main instrument available to encourage disputants to turn to the judicial system - the grant of immunity from tortious liability. The case of remedies for wrong preliminary injunctions can thus demonstrate that restitution can serve as a middle ground between the ideal, which drives us to confer rights and liberties, and reality, which forces us to be minded of their misuse.

Tomorrow's Tort Law in Europe: Selected Questions (Le Droit De La Responsabilite Civile De Demain En Europe: Questions Choisies)

In this paper, the recent Austrian, French, Swiss, and Turkish legislative drafts, proposals and pre-proposals concerning tortious liability are analyzed against the background of the Principles of European Tort Law (PETL). We address three issues in particular. First, we deal with the use of the concepts of 'danger' and 'increased danger' as founding principles for both fault-based liability and strict or semi-strict liability for dangerous activities and objects. We argue that the legislative use of general clauses - or standards - rather than a more or less fixed set of rules for strict liability is not to be preferred.Secondly, we address the virtual division of tort law into two systems of tort law, one for natural persons acting without a specific professional role, and one for legal persons, corporations and organizations. It seems that all the drafts, proposals and principles implicitly or explicitly adhere to this bipolar structure of tort law.Finally, we turn to the question what the drafts, proposals and principles learn us about the goals of tort law as perceived by the draftsmen and how these goals are actually served in the drafts.

Tortious liability for greenhouse gas emissions? Climate change, causation and public policy considerations

The purpose of this paper is to assess the potential legal issues in establishing liability for large-scale emitters of greenhouse gases, in Australia, for resulting harms caused from changes to the climate system. This paper assesses the legal principles and policy issues associated with potential negligence claims against industrial emitters in Australia such as large coal mines and coal-fired electricity plants. This paper identifies a range of significant obstacles in successfully bringing claims in negligence for climatic harms. These include issues in foreseeability, causation and the operation of public policy principles. It is concluded that the distribution of risk from climate change, and associated allocation of liability, is more appropriately addressed through consistent, national legislation rather than through the ad hoc adaptation of the common law.

Veränderungen der medizinischen Standards und Anpassungsnotwendigkeit der rechtlichen Sorgfaltsmaßstäbe aus zivilrechtlicher Sicht

The legal standard of medical care is laid down in Sect. 276 of the German Civil Code (principle of due diligence). It applies to both contractual and tortious liability and likewise to the treatment of patients insured under the statutory health insurance scheme and self-payers. The legal standard of care conforms to the clinical standards because medical liability means medical professional liability. Liability law does not distinguish between different standards of care in the treatment of patients insured under the statutory health insurance scheme on the one hand and privately insured patients on the other. Changes in clinical standards immediately affect liability law without the need for formal adaptation of the legal standard of care. Liability law cannot claim more diligence than that owed from a medical point of view. Legislative changes that result in a lowering of medical standards (reduction in the quality of treatment) will have to be accepted by liability law, even if these are regulations pertaining to Social Law (SGB V, Book 5 of the German Social Code). In this respect, the principle of legal unity applies. In consideration of this kind of changes the due diligence requirements for the treatment of patients insured under the statutory health insurance scheme and privately insured patients remain basically equal. If these changes lead to an increase of risk for the patient, the resulting liabilities are not to be attributed to the therapist. What remains to be seen is whether there will be an increased attempt to minimise risk by "additionally purchasing health care services".

Theoretical framework of economic analysis of law governing marine pollution

The discipline of law and economics has attracted both lawyers and economists in the environmental field but scholarly work focusing on the economic analysis of law governing marine pollution is rather limited and lacking in clarity. This article sets out the theoretical framework on which is based the author’s more extensive study of this subject. In the article, the legal and economic approaches to environmental pollution, is first addressed followed by a discussion of two generations of economic analysis of environmental law. The first generation of studies explores the basic economic analysis of externalities and the associated fundamental common law doctrines and institutions.At the second evolutionary stage, the emphasis has moved to a new platform touching on the influence of economics on statutory prescriptions and rules of tortious liability as well as civil remedies and penal sanctions where the enquiry is more microcosmic. The special features of marine pollution are discussed in detail and the significance of distinguishing between accidental spills, operational discharges and deliberate dumping of wastes is highlighted from the legal and law and economics perspectives. It is stated in conclusion that the multilateral and trans-national dimension of ship-source marine pollution is central to the articulation of law and policy and that a sound international legal regime should take into account the economic analysis of this branch of the law.

THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM

The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.

Contributory Fault and Breach of Trust

New Zealand and Canadian courts are willing to reduce the liability of a fiduciary for breach of fiduciary duty to take account of the claimant’s contributory fault, whereas English and Australian courts are not. The picture is less clear as regards breaches of trust not involving a breach of fiduciary duty, such as merely careless breaches of trust. English courts have assumed that there is no scope in any case of breach of trust for reducing trustee liability to take account of the beneficiary’s contributory fault, but this paper demonstrates that there is no binding authority to that effect. In the absence of authority the matter falls to be determined as a matter of principle. There are a number of obstacles of principle in the way of apportionment of liability between trustee and beneficiary on the ground of contributory fault. One significant obstacle is the basic difference between the compensatory aim of tortious liability and the traditional aim of trustee liability to reinstate the trust fund by means of the action for account. Another is the exemplary nature of trustee liability, which favours the enforcement of trust obligations even where this might over compensate individual beneficiaries. Significant though these obstacles are, it is demonstrated that they can be overcome in the case of a careless breach by the trustee of a bare trust. In such a case there is no significant difference between the conceptual basis for, and remedies for, negligently caused harm in tort actions and actions for breach of trust. The trustee’s fault-based liability in such a case should therefore be capable of reduction to take account of the beneficiary’s own fault.

Opening Pandora’s Box - Appraising the Tortious Liability of Employers In Respect of Employment References

Opening Pandora’s Box - Appraising the Tortious Liability of Employers In Respect of Employment References

The emergence of solicitors’ tortious liability and the award of damages

Analyses the emergence of tortious liability on solicitors and the damages awarded against them for negligence in preparing wills, ie testamentary disposition, when this causes losses to beneficiaries recognisable in law; it is no longer the case that actions by clients against solicitors are always for breach of contract. Traces how negligence has been established as an independent tort, and shows how absence of privity does not debar a claim. Discusses the landmark case of Ross v Caunters, which showed that liability could be to a third party, ie the beneficiary of a will that was made void by solicitor negligence; discusses how the duty of care was ascertained in this and other cases. Outlines the control mechanisms that a third party has to prove before a court decides that a solicitor is liable: reliance on the solicitor, whether there is a causal link between negligence and loss, proximity and foreseeability; there is also the concept of fair, just and reasonable. Covers lastly the issues of unjust enrichment of unintended beneficiaries, professional indemnity insurance, social policy objectives for awarding damages, and the bounds of liability.

Republication of Foreign Government Statements: The Fair Report Privilege in U.S. Libel Law Reexamined

Whether news reports concerning foreign government proceedings enjoy the same level of protection from tortious liability as reports concerning domestic government proceedings is a question of great consequence for media in the United States, especially given the ever-increasing globalization of political and economic affairs. A growing number of libel cases generated by international journalism based in documents and meetings of government officials in other nations are testing the well-established fair report privilege in state and federal courts. This article, after analyzing the history, cases and commentary on the subject, concludes by recommending a liberal privilege for such reporting.