English Tort Law Imposing Liability Law Essay

English civil wrong Law wondrous Liability Law EssayThis essay lead loanress the top dog by exploring cases dealing with occupants obligation, subaltern obligation and psychiatric disparage. I c alone up to focus on narrow aspects within these three aras of legal philosophy allowing a deep critical analysis. Occupiers indebtedness, in my opinion, is an flying field of righteousness that chatters as sanitary very frequently obligation in cases involving trespassers. I dont doubt that there must be indebtedness for the homeowner who invites someone onto their buck and fails to provide a gumshoe environs which is seen in statute such as the Occupiers Liability operate 1957, duty to take such c atomic number 18 as in all the circumstancesto see that the visitor will be reasonably safe in using the premises.1However, civil wrong law insists that an occupier layabout be held conjectural for personal stigma suffered by trespassers be flummox of the allege of the land and this is where I see the Occupiers Liability Act 19842takes the rule of the 1957 Act and stretches it to a fault far. My first reappraisal of this aspect of civil wrong law is the conflict it has with criminal law. It seems in pellucid that in a criminal court a home owner whose land has been trespassed on, perhaps by a burglar, will be considered the victim and duly read the sympathy of the court and yet be cast in the role of villain in a civil court. Leon Green describes how an occupier will, insisting upon the intruders own wrong andinvokeing his own immunity from any duty to crop active care in behalf of a trespasser.3He then goes on to say, Assuming the intruder to be a wrongdoer, the landowners position would seem unassailable.4This daybook dates back to 1917 before statute had imposed occupiers liability but the model holds true. Why should the victim be held accountable for the criminals injuries in cases where there has been no active action on the part of the occupier? The negligent state of the land and arising liability should, in my opinion, be limited to lawful visitors and violate children, who can non be held to the same standard as adults, if only for policy reasons. A clear message demand to be sent to unlawful visitors detestation does non pay. Why allowance them in any way from an wrong venture? Not only does it not dissuade criminal demeanor it is also wholly unfair to impose this liability on a home owner.Additionally, I would argue that when comparing occupiers liability to other athletic fields of tort law, such as pure economic loss, it be experiences clear that comparatively occupiers liability allows too a lot liability. The case of Weller Co.5established that a person cannot cite for pure financial loss if that loss is unaccompanied by carnal damage. It seems reprehensible that innocent(p) victims of inadvertence cannot claim damages from those whose, shoulders are handsome enough to bear the loss,6and yet homeowners can be held nonimmune for the injuries of trespassers. Tort law insists that innocent victims of pure economic loss must assent the financial loss as bad serving. Why is this principle not extended to trespassers? Those who trespass on land with the intent to rend a crime cannot claim to be innocent of the misfortune that may bump them. This awareness combined with the illegality of the act is enough in my opinion to lay out any distress that befalls a trespasser down to bad luck with, in my opinion, no liability to the homeowner. If tort law will not help the innocent it seems foolish that it is so willing to help the shamed and this yet another reason why I remember tort law imposes too much liability.Further much, I cerebrate there is too much tortuous liability for occupiers in this area of the law and this can be seen in the conflict with the absolutist nature of airplane propeller law. This date is seen in Semaynes case The house of everyon e is to him as his castle and fortress.7This principle has everlastingly come with certain restriction as English space law has neer discernd total dominion over land. The 1957 and 1984 Occupiers liability acts impose a safe standard of maintenance of property. However, I put fore the argument that a landowner who has paid for the privilege of a property right should not be compel lead by the law to balk trespassers universe injured. Property law does not enforce positive covenants as they are considered an erroneous duty, why then, should the occupier, who is doing nothing, bestir himself to look out for the safety of those who come upon his premises? Why should they not look out for themselves, as they would do anywhere else, except as to negligence of those pursuing an active family of conduct.8I believe this burden should be alleviated and that occupiers should be allowed to cut down their cash, not on lawsuits, but on their property. Surely that is the prima facie eu daemonia of owning land? Insisting that occupiers are liable for trespassers does not sit well with the absolutist history of English property law as it presupposes that money be spent in a certain way to hinder injury. I do not believe tort law should add further restrictions to property that is already subject to the laws of planning permission, restricting covenants, abomination etc. I believe tort law imposes too much liability and needs to strike a better balance with occupiers property rights.Another area of tort law where there is too much liability, in my opinion, is vicarious liability for employers. I am not ambitious the belief that employers should be liable for their employers, to an extent, however I do believe greater limitations need to be put in place as employer liability is far too expansive. The law currently insists that employers are liable for any tortuous act committed by their employees as ample as the act is within the scope of employment. Even in case s where the employer has through with(p) his utmost to prevent any negligent behaviour from his employee the law clam up holds him accountable such as in the case of Whatman v. Pearson.9Vicarious liability is an important aspect of tort law, as employer insurance means the claimant has a higher chance of being paid damages. However I defend to accept an area of the law that so transparently undermines the crucial principle of causation. The law has had trouble establishing what employers should be liable for and I believe to annoy liability just and fair, vicarious liability should only apply in cases where the employer had some measure of control over the actions of the employee for causa, authorising the act. Acts that involve the work environment but are actually entirely removed from the employers scope of awareness, for example the fraudulent dealings of the suspects in Lloyd v. Grace, Smith Co.10, would therefore fall outside the employers scope of liability. This would allow for fairness for the employer, something which I believe has been disregarded in the development of vicarious liability, because as it is the law imposes too much liability in this area.Moreover, I believe that tort law imposes too much liability in placing the burden of liability on the employer as this reduces the employees right for his actions. The practice of indemnity is in place but prima facie, vicarious liability effectively negates an employees legal culpability as despite overlap liability damages are most likely to come from the employers insurance. healthy theory has taught us that laws play their part in shaping sociable dynamics and surely what is needed to improve society are laws that insure people are held responsible for their actions. The practice of vicarious liability, though coherent regarding policy reasons does not deal with the human reality of being legally and socially culpable for ones actions. It seems to me that vicarious liability is yet an other area of the law that supports the notion of passing the buck and the way to reduce acts of negligence is to hold the actual tortfeasors, the employees, financially responsible. Take the Japanese model of employer liability as described by Joseph Sanders and Lee Hamilton, Japanese law stresses exclusive responsibility for corporate crime and rarely holds the organization responsible.11As tenacious as employees are aware that any tort of negligence they commit during the course of employment will be recoverable from the employer they will never be inclined to be diligent to the best of their ability. It is for this reason I believe that tort law imposes too much liability on employers.I believe the area of psychiatric injury is one area of tort law where there is far too little liability. For a claim regarding psychiatric injury to be actionable the claimant must have either been a native victim who was a foreseeable victim of psychiatric or physical injury or a secondary vic tim who meets various criteria. These criteria are laid down in Alcock v. header Constable of South Yorkshire12and are that there is a loving cleave with the claimaint and the primary victim, proximity to the accident and that the psychiatric injury occurred as a result of seeing or hearing the accident with eyes and ears. alternate victims have to jump through hoops to prove they de serve well recompense for a psychiatric injury and this seems to suggest that the judicial system does not hold psychiatric injury in the same regard as physical injury. The law commission states, although psychiatric illness is often more debilitating than physical injury, the message conveyed by the prevailing rules is that mental and mad wellbeing are of less account than physical integrity.13Perhaps the recalcitrance of the tort system to consider psychiatric injury as sufficient to physical injury, and therefore increase liability, is because of the residual stigma associated with psychiatric injury as well as the upkeep of floodgate liability. Whatever the reason, a system that differentiates betwixt the two forms of injury is in my opinion a flawed system as both are forms of injury that should be dealt with uniformly. Lord Lloyd remarks that, there is no justification for regarding physical and psychiatric injury as different kinds of injury,14and yet the liability for both forms of injury is inactive imbalanced.Furthermore, why should different rules apply to primary and secondary victims? Should forseeability, causation, establishment of harm etc not be the core principles in establishing liability? As H. teff grass states, in distinguishing between primary and secondary victims tort law, allows artificial criteria to drive out the more natural question should the defendant be liable to the plaintiff in all the circumstances?15I believe tort law offers too little liability by erecting false barriers that prevent victims from attaining damages. Cases such as Al cock16and White and Others v. Chief Constable of South Yorkshire17are evidence of the unfair system at work. Both cases involve innocent victims who were denied damages as liability was not imposed because crude, superficial criteria were not meant. As long as the harm to the victim was caused by the defendant and the damage to the victim was foreseeable then I do not believe there should be any differentiation between primary and secondary victims. The flaws of tort laws attempt to make a distinction between between primary and secondary victims is summed up by H. Teff who states, sooner of discriminating against foreseeable secondary victims, the law should reflect the fact that, often, the selfless source of their reactions makes them at least as deserving as legion(predicate) primary victim Until the current legal system looks to a hotly and fairer model of liability regarding psychiatric injury the liability imposed will never be enough.Another fault with the tort system i n how it deals with psychiatric injury is that the limits imposed for liability are too restrictive and the reasons behind the restrictions not particularly persuasive. The law refuses to relax the criteria for liability with no real explanation as to why bar a fear that laxer criteria will open up the floodgates of litigation. However H. Teff, referencing B.F. Hoffman18and the Law Commission, Consultation wallpaper19, explains why he does not think this is a real cause for concern, The enduring, if diminished, stigma associated with psychiatric illness inhibits many would-be claimants, and the risk of image through increasingly refined techniques of psychological assessment has reduced the risk of undeserving claimants succeeding on the strength of loose medical definition.20So if one accepts that the floodgate argument, for imposing such rigid criteria before there can be criteria, is unsound then one must also accept that the current law imposes too little liability as a resul t.Furthermore, many of the criteria regarding psychiatric injury are archaic and arbitrary. For example, Mullany famous that, The psychiatric literature does not allow the assertion that the impact of injury is inevitably more severe if directly perceived21and yet tort law has stubbornly held onto the criteria that the event causing injury must be perceived with the senses, refusing to allow development and change in line with new understandings of psychiatric illness. Cane argues, how can we justify a rule which requires mentally traumatized people to go to court and prove that they have strong feelings of cognize and affection towards another?22The old attitudes to psychiatric harm are no longer justifiable and so a criterion that is insensitive to the needs of those suffering injury must be criticized and adjusted. The criterion that the event causing psychiatric harm must be sudden23again seems arbitrary, a rule designed for no other purpose but too limit liability. Harvey Te ff argues, The laws current stance effectively penalises those whose illness involves a more prolonged reaction to an event or events closely connected with the defendants negligent conduct.24These are but a few of the criteria imposed before there can be liability and I believe they serve to show that as Harvey Teff states, the current rules are, At odds with psychological reality, amount(ing) to no more than unprincipled line-drawing.25I have attempted to fix both sides of the question equal attention and in doing so this has led to me to the conclusion that one cannot say tort law as a whole imposes too much or too little liability. I believe that psychiatric injury is too restricted in its liability and vicarious and occupiers liability are too expansive. In these areas I believe reform would be welcome however one must recognise that no legal system is perfect and the tort system could be far worse.