English Tort Regulation Imposing Liability Regulation Essay

This article will dwelling address the question by discovering cases dealing with occupiers responsibility, vicarious responsibility and psychiatric damage. I plan to focus on small aspects within these three regions of rules allowing a deep critical examination. Occupier's liability, for me, is an area of law that imposes too much responsibility in cases relating trespassers. I don't question that there must be responsibility for the owner of a house who invites someone onto their land and does not provide a protected climate which sometimes appears in statute including the Occupier's Liability Function 1957, ". . . duty to consider such attention as in every the circumstances. . . to see that visitors will be fairly safe in using the premises. " However, tort law insists an occupier can be held liable for compensation for injuries endured by trespassers as a result of talk about of the land which is where I really believe the Occupiers Liability Act 1984 needs the basic principle of the 1957 Act and extends it too far. My first critique of the facet of tort legislations is the discord they have with criminal laws. It seems incoherent that in a legal court a house owner whose land has been trespassed on, perhaps with a burglar, will be considered the victim and duly have sympathy of the court yet be cast in the role of villain in a civil courtroom. Leon Green describes how an occupier will, "insist[ing] upon the intruder's own wrong and. . . invoke[ing] his own immunity from any responsibility to exercise lively treatment in behalf of an trespasser. " Then goes on to state, "Assuming the intruder to be a wrongdoer, the landowner's position would seem to be unassailable. " This journal dates back to 1917 before statute acquired imposed occupier's liability however the sentiment holds true. Why if the victim be organised in charge of the criminals' injuries in cases where there has been no productive action on the part of the occupier? The 'negligent' status of the land and arising liability should, for me, be limited to lawful tourists and trespassing children, who can't be kept to the same standard as people, if only for policy reasons. An obvious message needs to be sent to unlawful visitors; crime will not pay. Why recompense them at all from an illegal venture? Not only doesn't it dissuade legal behaviour it is also wholly unfair to impose this responsibility on a homeowner.

Additionally, I would argue that when comparing occupier's responsibility to other areas of tort laws, such as natural economic damage, it becomes clear that relatively occupier's responsibility allows too much responsibility. The truth of Weller & Co. founded that a person cannot say for genuine financial damage if that loss is unaccompanied by physical damage. It appears reprehensible that innocent victims of negligence cannot claim injuries from those whose, "shoulders are wide-ranging enough to carry losing, " and yet homeowners can be held responsible for the accidents of trespassers. Tort laws insists that innocent victims of 100 % pure economic damage must recognize the financial loss as 'bad fortune. ' How come this rule not expanded to trespassers? Those who trespass on land with the objective to commit a criminal offense cannot state to be innocent of the misfortune which may befall them. This awareness combined with the illegality of the action is enough during my opinion to place any harm that befalls a trespasser right down to 'bad chance' with, in my opinion, no responsibility to the property owner. If tort legislation won't help the innocent it appears foolish that it is so happy to help the guilty which yet another reason I believe tort laws imposes too much liability.

Furthermore, I really believe there exists too much tortuous responsibility for occupiers' in this area of the law which is observed in the issue with the absolutist nature of property rules. This view is seen in Semaynes' circumstance: "The home of everybody is to him as his castle and fortress. " This principle has always come with certain limitation as British property law hasn't recognised total dominion over land. The 1957 and 1984 Occupiers liability acts impose a safe standard of maintenance of property. However, I help with the argument a landowner who has payed for the privilege of a property right shouldn't be compelled by the law to avoid trespassers being injured. Property law will not enforce positive covenants because they are considered an erroneous work, why then, ". . . if the occupier, who is doing nothing at all, bestir himself to consider the safety of those who come after his premises? Why should they not look out for themselves, as they might do somewhere else, except as to negligence of these pursuing an active course of conduct. " I really believe this burden should be alleviated which occupiers should be allowed to spend their money, not on lawsuits, but on their property. Surely this is the prima facie benefit for owning land? Insisting that occupiers are responsible for trespassers does not stay well with the absolutist background of English property laws as it presupposes that money be put in in a certain way to avoid injury. I really do not believe that tort legislation should add further constraints to property that is already at the mercy of the regulations of planning permission, restrictive covenants, nuisance etc. I really believe tort law imposes too much liability and must strike a much better balance with occupiers' property rights.

Another part of tort law where there is too much responsibility, for me, is vicarious liability for employers. I am not challenging the belief that employers should be liable for their employers, to an extent, however I do believe greater restrictions need to be set up as employer liability is far too expansive. The law presently insists that employers are responsible for any tortuous work committed by their workers as long as the act is within the range of career. Even where the employer has done his utmost to avoid any negligent behaviour from his worker the law still retains him accountable such as regarding Whatman v. Pearson. Vicarious responsibility is an essential requirement of tort rules, as employer insurance means the claimant has an increased potential for being paid injuries. However I battle to accept an area of the law that so transparently undermines the key basic principle of causation. The law has had trouble creating what employers should be responsible for and I really believe to make responsibility just and reasonable, vicarious responsibility should only apply where the employer had some way of measuring control over the activities of the worker for example, authorising the act. Acts that entail the work environment but are actually entirely taken off the employers opportunity of awareness, including the deceptive dealings of the defendants in Lloyd v. Sophistication, Smith & Co. , would therefore fall season outside the employers' opportunity of liability. This would enable fairness for the company, something which I really believe has been disregarded in the introduction of vicarious liability, because as it's the laws imposes too much responsibility in this area.

Moreover, I believe that tort legislation imposes too much liability in placing the burden of responsibility on the company as this reduces the employee's accountability for his activities. The practice of indemnity is set up but prima facie, vicarious responsibility effectively negates an employee's legal culpability as despite posting liability damages are most likely to come from the employer's insurance. Legal theory has taught us that regulations play their part in shaping public dynamics and surely what's had a need to improve contemporary society are laws that ensure people are kept accountable for their activities. The practice of vicarious liability, though coherent regarding coverage reasons does not offer with the real human reality of being lawfully and socially culpable for one's actions. It seems if you ask me that vicarious responsibility is yet another section of the law that supports the notion of 'passing the buck' and the best way to reduce functions of neglect is to carry the genuine tortfeasors, the employees, economically responsible. Take japan model of company liability as described by Joseph Sanders and Lee Hamilton, "Japanese laws stresses specific responsibility for corporate and business crime and almost never holds the organization responsible. " So long as employees know that any tort of neglect they commit during job will be recoverable from the company they'll never be inclined to be diligent to the best of their ability. It is because of this I think that tort regulation imposes too much liability on employers.

I believe the region of psychiatric harm is one area of tort laws where there is far too little liability. For any case regarding psychiatric problems for be actionable the claimant will need to have either been a primary victim who was simply a foreseeable victim of psychiatric or physical accident or a secondary victim who fulfills various criteria. These criteria are laid down in Alcock v. Chief Constable of South Yorkshire and are that there is a loving relationship with the claimaint and the principal sufferer, proximity to the car accident and that the psychiatric personal injury occurred as a result of seeing or experiencing the incident with eyes and ears. Supplementary victims have to bounce through hoops to demonstrate they deserve recompense for a psychiatric accident and this seems to suggest that the judicial system will not hold psychiatric accident in the same respect as physical accident. The law fee areas, "although psychiatric disease is often more devastating than physical personal injury, the communication conveyed by the prevailing rules is the fact mental and emotional wellbeing are of less account than physical integrity. " Possibly the recalcitrance of the tort system to consider psychiatric injury as equal to physical injury, and for that reason increase responsibility, is as a result of residual stigma associated with psychiatric injury as well as the fear of floodgate liability. Whatever the reason, a system that differentiates between the two forms of injury is in my own judgment a flawed system as both are kinds of injury that needs to be handled uniformly. Lord Lloyd remarks that, 'there is not a justification for regarding physical and psychiatric harm as different "kinds" of injury, " and yet the liability for both varieties of injury continues to be imbalanced.

Furthermore, why should different guidelines apply to 'major' and 'supplementary victims'? Should forseeability, causation, establishment of injury etc not be the central principles in building liability? As H. Teff says, in distinguishing between principal and extra victims tort legislation, "allows artificial criteria to displace the greater natural question: should the defendant be liable to the plaintiff in every the circumstances?" I believe tort laws offers too little liability by erecting wrong obstacles that prevent victims from attaining damages. Circumstances such as Alcock and White yet others v. Chief Constable of South Yorkshire are evidence of the unfair system at the job. Both cases require innocent victims who had been denied problems as liability was not enforced because crude, superficial criteria were not designed. So long as the injury to the sufferer was triggered by the defendant and the damage to the sufferer was foreseeable i quickly do not consider there should be any differentiation between main and supplementary victims. The imperfections of tort laws and regulations try to make a difference between between key and supplementary victims is summed up by H. Teff who claims, "Rather than discriminating against foreseeable "secondary" victims, the law should reflect the fact that, often, the altruistic way to obtain their reactions makes them at least as deserving as many "principal" victim" Before current legal system appears to a fresh and fairer model of liability regarding psychiatric injury the liability imposed will never be adequate.

Another mistake with the tort system in how it handles psychiatric injury would be that the limits enforced for liability are too restrictive and the reasons behind the restrictions not especially persuasive. The law refuses to relax the criteria for liability without real explanation as to the reasons bar a dread that laxer conditions will open up the floodgates of litigation. However H. Teff, referencing B. F. Hoffman and the Law Commission, Consultation Newspaper, points out why he does not think this is a real cause for matter, "The enduring, if diminished, stigma associated with psychiatric disease inhibits many would-be claimants, and the chance of coverage through increasingly enhanced techniques of mental evaluation has reduced the chance of undeserving claimants being successful on the effectiveness of loose medical definition. " So if one allows that the floodgate debate, for imposing such rigid requirements before there can be conditions, is unsound then one must also acknowledge that the current law imposes too little liability as a result.

Furthermore, many of the standards regarding psychiatric damage are archaic and arbitrary. For example, Mullany known that, "The psychiatric books does not permit the assertion that the impact of trauma is inevitably more severe if directly identified" and yet tort legislation has stubbornly presented onto the conditions that the event causing injury must be recognized with the senses, refusing to allow development and change in line with new understandings of psychiatric health issues. Cane argues, 'how can we justify a rule which requires psychologically traumatized people to go to court and prove they have strong thoughts of love and love towards another?" The old attitudes to psychiatric injury are no longer justifiable and so a criterion that is insensitive to the needs of those suffering harm must be criticized and modified. The criterion that the function causing psychiatric damage must be "sudden" again seems arbitrary, a rule suitable for no other purpose but too limit liability. Harvey Teff argues, "The law's current stance effectively penalises those whose condition involves a more prolonged a reaction to a meeting or events tightly linked with the defendant's negligent conduct. " They are but a few of the criteria enforced before there may be liability and I believe they serve showing that as Harvey Teff areas, the current rules are, "At odds with psychological certainty, amount(ing) to no more than unprincipled line-drawing.

I have attemptedto give both attributes of the question similar attention and in doing so this has resulted in me to the final outcome that you cannot say tort legislations all together imposes too much or inadequate liability. I assume that psychiatric harm is too constrained in its responsibility and vicarious and occupier's liability are too expansive. In these areas I really believe reform would be pleasant however one must recognise that no legal system is perfect and the tort system could be much worse.

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