Tort law assignment Essay Example for Free

Tort law assignment Essay Advise John as to claims that he may have against Brian in tort. For John to make a claim against Brian in tort the following three elements must be proved: whether Brian owes a duty of care to John, if that duty was breached and if the breach caused the damage. Liability for negligent misstatements causing pure economic loss have the usual requirements of duty, breach and damages but special treatment is necessary as people are less careful in what they say than in what they do on social and informal occasions. Lord Pierce in Hedley Byrne stated: â€Å"word are more volatile than deeds, they travel faster and are used without being expended† To establish the difference between ‘pure economic loss’ and economic loss which is consequent upon physical damage to property. This was defined in Spartan Steel v Martin 1973, where the loss was foreseeable but Lord Denning held a line must be drawn, and that the loss was better borne by the insures than by the defendants alone. The Misrepresentation Act 1967 states where there is a fiduciary relationship (a person to whom property or power is entrusted for the benefit of another) for example between a solicitor and a client liability arises here in contract and tort. There is no need to prove a duty of care exists. Brian who is a part qualified accountant advised John about the shares, but there was no contract involved so he wouldn’t be liable under contract and tort. Brian advised John to buy shares from Brighwater Ltd. so it was something Brian said to John and not did. Therefore, the area of deceit must be looked at. Deceit occurs when a person knowing or recklessly makes a false representation to the claimant. The leading case Derry v Peek 1888 outlined that no duty would be required in relationship to negligent misrepresentations. Therefore this case can’t be applied to Brian and John’s scenarios as action was only available for fraudulent misrepresentations. This was then overruled in Hedley Byrne v Heller 1964 where the possibility of claims for negligent misstatement was opened up. That a duty of care would arise in appropriate circumstances to give careful advice and that failure to do so would result in liability for economic loss. The House of Lords laid down strict guidelines for when this could apply: If there was a special relationship between the two partes, based on the defendants skill and judgement and the reliance placed upon it. The defendant (advisor) must posses a special skill relating to the type of advice given and must have realise that the claimant (advisee) would rely on that skill. The claimant receiving the advice must have acted in reliance on it as longs as it was reasonable to rely on the advice. To establish whether there was a special relationship between Brian and John the meaning of a special relationship must be looked at. In Chaudry V Prabhaker 1988 it showed that a purely social relationship can give rise to a duty of care, when carefully considered advice was being sought from a party with some expertise. Brian share a social relationship with John as they are friends, but this gave rise to Brian’s duty of care. As carefully considered advice was being sought from John who knew Brian would have some expertise about shares as a he was a part qualified accountant. It was in Yianni v Edwin Evans 1982 which established the existence of a special and that even if there is no contractual relationship between a building society surveyor and the house purchaser that a special relationship could exist. Brian and John did not sign a contract but a special relationship can still be established. Therefore under Hedley Byrne the first guidline has been established to prove there is a duty of care as there is a special relationship between Brian and John, It must be proved that Brian the advisor possessed a special skill relating to the type of advice he gave and must have realise that the John (advisee) would rely on that skill. In Mutual Life and Citizens Assurance v Evatt 1971 it was held that there would only be a duty of care if the party giving advice held himself out as being in the business of giving the advice in question. So, Brian owes John a duty of care as he is a part qualified accountant and he gave out advice about buying Brightwater shares, which is advice relating to the business of accountancy. The second guideline under Hedley Byrne has been established and Brian owes John a duty of care as he possessed a special skill relating to the advice he gave. John must prove that in receiving the advice he acted in reliance on it. As in Smith v Eric S Bush where it was held that if there is foreseeable reliance on advice that has been given that a duty of care is owed. John relied on Brian’s advice and considered it reasonable, as he invested all his shares in the company which shows there was foreseeable reliance. Therefore Brian owes John a duty of care and under Hedley Byrne the last guidline has been proven. However, there has been limitations on these three guidelines as in Caparo V Dickman 1990. The main principle being that the reliance is reasonably foreseeable to the defendant. For a duty of care to exist under Caparo the following must be established: whether the consequences were reasonably foreseeable, if there is a relationship of proximity between the parties, and if it’s fair just and reasonable to impose a duty. For the first part of establishing a duty of care it must be proved that the defendant’s act were reasonably foreseeable. In Kent v Griffiths 2000 it was reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to arrive. In Bourhill v Young 1943 the motorcyclist did not owe a duty of care as it was not reasonably foreseen that the claimant would be affected by his negligent driving. Brian owes John a duty of care as it is reasonably foreseeable that there is risk involved if Brian advises John to buy shares in Brightwater Ltd. Is there a relationship of proximity between the two parties? This can be through a legal relationship or physical closeness. In Osman v Ferguson 1993 there was a sufficient close relationship between the parties compared to Hill v Chief Constable of South Yorkshire 1998 where the relationship between the police and the victim was not sufficiently close. There is a relationship between Brian and John of friends, so there is a sufficiently close relationship between them. Is it fair just and reasonable to impose a duty of care? It was not held fair just and reasonable to impose a duty of care on the police as there was not a relationship of proximity in Hill v Chief Constable of South Yorkshire. In Capital v Hampshire County Council 1997 it was held fair to impose a duty on the fire brigade. So, it would be fair just and reasonable to impose a duty of care on Brian as he is a part qualified accountant who advised John to buy the shares, so he owed John a duty of care to give careful advice. Therefore Brian satisfies all three stages of the Caparo test and it would be held by the courts that he did owe John a duty of care. Guidance on the factors to be taken into account in establishing a duty of care have been provided by the Court of Appeal in James McNaughten v Hicks Anderson 1991: The purpose for which the statement was made The purpose for which it was communicated The relationship between the person giving the advice, the person receiving the advice and any relevant third parties The size of any class that the person receiving the advice belonged to. The degree of knowledge of the person giving the advice. Reliance by the advisee. In taking these factors into account, Brian’s purpose for which he made the statement ‘trust me, buy their shares you will be on a winner’ was so that John would buy the shares. The purpose Brian communicated the advice for was for John to take action and invest in Brightwater Ltd. The relationship between Brian and John is that they are friends and John was relying on Brian to give him guidance about buying shares. To consider Brian’s knowledge at the time he made the statement was that he had professional knowledge of an accountant, because even if he was only part qualified he would be judged against the standard of a fully qualified accountant. John relied on Brian’s advice, as he was his friend and because he thought Brian was giving him reasonable advice, which he took and then invested shares in the company. Under James Macnaughton all 6 factors have been proven and Brian would owe John a duty of care. Now that it has been proved that Brian owes John a duty of care it must be proved that he breached the duty. For a breach of duty to be proved the following must be taken into consideration: the degree of risk, standard of care and proof of breach. The degree of risk must be high as in Hayley v London Electricity Board where there was a known risk. Brian advised John to buy the shares and there was a high risk that John could lose his money as buying shares is a risky business. So it has been proved that there was a high risk John would lose his money. The standard of care was established in Blyth v Birmingham Waterworks 1856 which introduced a reasonable man test that if the defendant falls against the standard of care a reasonable man would take there is a breach of duty. Brian fell against the standard of care a reasonable man would take as he advised John to buy the shares to be ‘on a winner’ which Brian could not have been certain about so he breached his duty. Specific rule apply to specific people so considerations will be made for different types of people. Mullin v Richards 1998 showed children can be held for negligence. Nettleship v Weston 1971 showed learners would be judged against the standard of a reasonable competent driver. The standard of care expected was that of a similarly qualified expert as in Bolam v Friern Hospital 1957. Therefore even though Brian was only a part qualified accountant, he still fell below the standard expected of a similarly qualified accountant, as he advise John wrongly about the shares and has breached his duty. Proof of breach ‘res ipsa loquitar’ fact speak for themselves rule. The claimant must show that the defendant was in control of the situation that caused the claimants injury and that it was cause by negligence. John can prove that Brian was the reason he lost all of his investment, because if it wasn’t for Brian advising him to buy the shares he wouldn’t have lost the money. Now that breach of duty has been proven, it must be proven that the damages suffered were caused by the breach of duty. This can be proved using the ‘but for’ rule as in Barnett v Chelsea and Kensington1969 where the claimant wouldn’t have suffered the damages ‘but for’ the defendants breach of duty. ‘John wouldn’t have lost out on his investment ‘but for’ Brian advising him to buy the shares. If the ‘but for’ is proven but the damages are too remote from the defendant breach of duty then there is no liability as in Wagon Mound 1961. However John lost all his investment as the company went into liquidation so the damage is not remote. Overall, it has been proven that Brian owes John a duty of care, that he breached the duty and that the damages suffered were caused by his breach so he would be liable! References: Turner C. and Hodge S. (2007) Unlocking Torts. Oxon: Book point Ltd Hogdson J. and Lewthwaite J. (2004) Tort Law. New York:Oxford Press Harpwood V. (2009) Modern Tort Law. Oxon: Routledge-Cavendish McBride N. and Bagshaw R. (2008) Tort Law. Essex: Pearson Education. Cooke J. (2009) Law of Tort. Essex: Pearson Education.

To Falsify or not to Falsify :: Science Scientific Essays

To Falsify or not to Falsify Consider for a moment the views of Hellenic and Hellenistic science. Hellenic science was a science of the big picture. Science which often overlooked small details. Hellenistic science, on the other hand, was much more mathematical and precise. The shift from Hellenic to Hellenistic science was nothing more than a change of perspective in science. Right or wrong aside, scientist's perspectives changed and along with it what was allowed to be scientific. To quote Khun, "What is it that transforms an apparently temporary discrepancy into an inescapable conflict. How can an conceptual scheme that one generation admiringly describes as subtle, flexible, and complex, become for a later generation merely obscure, ambiguous, and cumbersome?"(Khun 76) Whether we like it or not, science is subjective. There are certain universal standards of science that all fields must follow, such as the empirical method, but among the different scientific fields science changes. What works in one field may not work in another. Sir Karl Popper claims "The criterion of the scientific status of a theory is its falsifiability."(Popper23). He then states "Induction, i.e. inference based on many observations, is a myth" (Popper25). This produces problems for certain fields of science.. His theory accounts for the "hard sciences", chemistry, physics and astronomy, but not for the "soft sciences". These soft sciences deal with different set of limitations and problems. Many so called "pseudo-sciences" deal with people, not constant non-sentient bodies. In these sciences, the variables are limitless and the best predictions scientists can produce are probabilities. So what about other sciences such as psychology, sociology, meteorology, and medicine? There are numerous fields of science that deal with probability and correlation's, which are part of the inductive method of science. What's there to say to these fields? For these sciences induction must remain valid when deduction is not possible. In the "hard sciences", such as chemistry, physics, and astronomy, deduction is applicable to the validity of a theory, and therefore deduction can be used to accurately falsify a theory. The soft sciences require induction for theory verification as well as deduction. Since I am a psychology major, I will use psychology and sociology to refute Poppers claims of falsifiability. The examples that I give are done with the scientific method. When necessary, random samples are used and confounding variables are negated. These studies were done within scientific guidelines.

Othello – Notions of Powerplay

Othello embraces many instances involving the dynamic of Powerplay. This can be examined through the relationships of characters: being Othello, Iago, Roderigo and Desdemona. Iago's relationship with Othello is where the clearest examples of Powerplay can be viewed. Iago maintains an overarching power over Othello in the play. Iago is successful in manipulating both the truth and Othello, describing Casio's departure from his meeting with Desdemona: â€Å"that he would steal away so guilty like, seeing you coming†. Iago's tremendous gift with language allows him to maintain power over Othello by essentially planting doubt in his mind. Throughout the play, Iago is successful in manipulating Othello through his artificial language which portrays himself as an ‘honest' friend who is there for assistance. This is reiterated throughout the play with constant repetition of the word ‘honest' when describing Iago and this is highly ironic as he is clearly the most dishonest character in Othello. Iago is often seen enraging Othello by providing extra, unnecessary details about Desdemona's supposed betrayal. Whilst attempting to remain innocent and of a moral high ground , Iago's gift with language enables this manipulation to have a greater effect on his victim, Othello. This is clearly conveyed when he describes Desdemona's unfaithfulness with Cassio where he lies â€Å"with her, on her, what you will†. This has an astronomical impact on the Moor who's response is furious and vicious. Iago's manipulation is further explored when he quotes after Othello has a epileptic fit â€Å"my medicine, work! â€Å". This enables the audience to understand Iago's thoughts and offers them insight as he acknowledges that his medicine, being his language is having a huge effect on Othello. He is now in complete control and possesses complete power. Powerplay can be notable seen through the relationship of Othello and Desdemona as she is innocent of all his accusations and only lives to serve him. Given the context, being Venice and Cyprus in the 16th century the men are the more powerful and capable whereas women serve a stereotypical purpose. This is also seen in Othello where Desdemona is entirely faithful to her husband the Moor as he is in control of the relationship. Often, however the powerplay is turned around as Desdemona is capable of convincing Othello with her delicate voice and he becomes her victim. Ultimately, the both fall victim to Iago, the ultimate manipulator and this is clear when he visits Desdemona, asking â€Å"Can he be angry? † after she confides in him about Othello's belief in her unfaithfulness which originated from Iago. This is highly ironic and makes clear the extent of Iago's power and control over all the characters. The relationship of Iago and Roderigo is based on power and manipulation as Iago uses him for financial gain. Roderigo is blurred in his ways by his love and lust for Desdemona and Iago recognises and capitalises on the opportunity he sees by this. This is clearly seen when Roderigo tells Iago that he will â€Å"incontinently drown myself† as he believes he will never have Othello's wife and after only minutes, Iago is able to convince him to â€Å"sell all my land† in order to provide Iago with financial support. Immediately, Roderigo then leaves and the audience is confronted with a soliloquy by Iago, referring to Roderigo as a â€Å"snipe† and explaining he has no emotional connection with Roderigo and he only uses him for his money. This offers insight into Iago, his evil train of thought and his manipulative qualities. Thus it can be seen that Othello clearly offers forward examples of Powerplay which can be examined through relationships within the play. Ultimately, at the centre of all Powerplay is Iago who is capable of extraordinary manipulation due to his strong ability with language, with his most obvious examples being Othello, Desdemona and Roderigo. The powerplay is so clear between the characters that is becomes very clear that manipulation is one of the foundations of powerplay.

Domestic Violence on Women in India - 5672 Words

INTRODUCTION : â€Å"Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women...† The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993 Since the 1990s, there has been increasing concern about violence against women in general, and domestic violence in particular, in both developed and developing countries. Not only has domestic violence been acknowledged worldwide as a violation of basic human rights, but an increasing amount of research highlights the health burdens, intergenerational effects, and†¦show more content†¦The Children and family court advisory and support service in Britain uses the term domestic violence to refer to a wide range of abusive and violent behavior in its â€Å"domestic violence policy†. It defines domestic violence as â€Å"patterns of behavior characterized by the misuse of power and control by one person over another who are or have been in an intimate relationship.† This is said to occur in all kinds of relationships ranging from same sex to mixed gender. In India, human relationships lead to domestic violence when one adult misuses his power to control another person’s life. Violence is primarily the establishment of fear and control in a relationship through physical and other forms of violence and abuse. The violence normally manifests as physical abuse, mental torture, sexual assault and threats. Violence can be more subtle, like degrading someone constantly, depriving them of money or confining them to the house. Emotional abuse and social ostracism can be as bad as physical abuse in terms of long term effects. In NFHS-3, domestic violence is defined to include violence by spouses as well as by other household members. 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