Defective Premises—Shall the Ratepayer Foot the Bill? (original) (raw)
The Cambridge Law Journal, 2008
Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:
Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims
Depaul Law Review, 2013
Processing, 9 LAW & Soc'y REV. 63, 81 (1974) ("In lumping it the salience of the dispute is reduced not so much by limiting the contacts between the disputants, but by ignoring the dispute, by declining to take any or much action in response to the controversy."). 5. DEBORAH R. HENSLER ET AL., RAND, COMPENSATION FOR ACCIDENTAL INJURIES IN THE
Failure of consideration: Roxborough v Rothmans
Modern Law Review, 2003
The judgments of the majority were along the same lines, and decisions on which the majority judgments were broadly consistent will be referred to as decisions of the court. tobacco licence fee 'funded [Rothmans] to meet a cost of continuing in business for ... future licence periods, to the mutual benefit of both wholesaler and retailer'. 3 It had previously been held that the licensing scheme was invalid as a disguised excise duty, which the New South Wales Parliament had no power to impose under the Australian Federal Constitution. 4 The recovery of money paid as licence fees to the government of New South Wales was governed by a separate statute and was not in issue in Roxborough. The issue at stake was whether, since it was now known that Rothmans did not have to pay the licence fee, Roxborough could recover the part of the price paid that was attributable to it. Otherwise it would seem that Rothmans would be left with an unjustified surplus from the contract. References below to the recovery of the payment refer to the recovery of this part of the total payment. The court denied that there was any contractual claim to recover the payment. Such a claim, it was thought, would have to be based on an implied term in the contract to the effect that the sum paid in respect of the tobacco licence fee would be repayable if Rothmans was not liable to pay a licence fee. According to the court, it would be 'artificial and unconvincing' to find such a term, because the parties 'made no agreement, express or implied, about what was to happen if the tax was held to be invalid'. 5 The contingency that arose was not provided for in the contract. The claim based on failure of consideration as a failure of condition It was held, however, that there was a non-contractual claim to recover the payment. This was a form of the claim traditionally described as a claim for money had and received, and nowadays as a restitutionary claim, the ground for which in the present circumstances was 'failure of consideration'. This was understood to mean that the payment was made on a basis or a condition or 2 Save for a nominal sum.
Harmonising tort law. Exploring the concept of fault
2016
After a tragic event, breaking news, headlines from newspapers and opinion papers often start with a twofold question: First: what really happened? And second: who was at fault or who is to blame? Sometimes, these questions do not get a clear and convincing answer. Let us illustrate this with the following event, which was commemorated on the 14 July 2015, during the drafting process of this article. In 1865, one hundred and fifty years ago, an international expedition of French, Swiss and English climbers conquered the Matterhorn, the well-known mountain that reigns in splendid isolation above Zermatt, in the Swiss Pennine Alps. During the descent, the English climber Douglas Hadow, who afterwards was considered as the most inexperienced of the group, ‘knocked over his aid and foot placer, the Chamonix guide Michel Croz. The next man up the rope, the Rev. Charles Hudson, was dragged from his feet and so, in turn, was Lord Francis Douglas. All of them fell to their deaths. Only thre...
Landmark caselaw on framing of charge
"17. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself." Delhi High Court Rajeev Kumar Goyal @ Raj Kumar ... vs State Through C.B.I. on 8 August, 2014 Author: S. Muralidhar
Precious little guidance: Jury instruction on damage awards
Psychology Public Policy and Law, 2000
Jury instructions on damage awards are notoriously vague and ambiguous. As a result, awards are sometimes unexpected and seemingly illogical. In this article, the authors argue that jury instructions regarding damages are vague because the law of damages itself is purposefully ambiguous-allowing particularized justice across a variety of different circumstances. The authors review research on comprehension and application of substantive jury instructions related to damages and on procedural variations at trial (e.g., use of preinstruction, bifurcation, blindfolding jurors to various issues, special verdict forms, caps on damages, and instruction revision) that impact the substantive instructions that jurors receive from the judge. They comment on attempts at reforming jury instructions regarding damages and conclude that jurors' decision making on this difficult and emotional issue could be made more predictable by careful reforms at the trial level.
Court Review, Volume 48, Issues 1-2 (Complete)
2013
his special issue on eyewitness identification includes some of the world' s premier researchers and commentators, along with some of their best students. The six articles provide judges with easy-to-understand, state-of-the-art information on various social-science perspectives relevant to eyewitness identification tailored to a judicial readership. In his introductory article, James Doyle provides judges with an argument for why you should care about what social scientists have documented in their research. It is followed by an article by Laura Smalarz and Gary Wells that reviews eyewitness research, focusing on mistaken identifications and false certainty by witnesses. Their reviews point out the need for judges to be vigilant in making sure that eyewitness identifications are accurate. Accurate identifications are the subject of the article by Richard Wise and Martin Safer, who present a method for analyzing the accuracy of eyewitness testimony that can help judges in ensuring correct outcomes for defendants. It is a challenging task for judges. Fiona Gabbert and her colleagues from the United Kingdom and U.S., Daniel Wright, Amina Memon, Elin Skagerberg, and Kat Jamieson, discuss their research, and the research of others, showing that eyewitness memory can be influenced by post-event information, with advice to police and attorneys (and judges) regarding how they can try to protect against faulty identifications by witnesses. A cross-national team of researchers from New Zealand and the U.S., Jeffrey Foster, Maryanne Garry, and Elizabeth Loftus, provide a brief report on recent research studies they conducted showing that repeated erroneous information can influence witnesses and jurors, once again raising the problems of faulty eyewitness identifications. Similarly, Brian Bornstein and Joseph Hamm report on several studies they conducted that show how judges can use jury instructions to protect against errors in eyewitness identifications. The challenge is great for judges, but we owe it to defendants and victims to get it right. I close by noting that we have reprised the cover photo used in a 1999 issue of Court Review that also looked at the legal and scientific issues involved with eyewitness testimony.-Alan Tomkins Court Review, the quarterly journal of the American Judges Association, invites the submission of unsolicited, original articles, essays, and book reviews. Court Review seeks to provide practical, useful information to the working judges of the United States and Canada. In each issue, we hope to provide information that will be of use to judges in their everyday work, whether in highlighting new procedures or methods of trial, court, or case management, providing substantive information regarding an area of law likely to be encountered by many judges, or by providing background information (such as psychology or other social science research) that can be used by judges in their work. Guidelines for the submission of manuscripts for Court Review are set forth on page 13 of this issue. Court Review reserves the right to edit, condense, or reject material submitted for publication. Advertising: Court Review accepts advertising for products and services of interest to judges. For information, contact January Serda at (757) 259-1864. Photo credit: Cover photo, Mary Watkins. The photo was taken in the Linn County Courthouse in Mound City, Kansas. ©2012, American Judges Association, printed in the United States. Court Review is published quarterly by the American Judges Association (AJA). AJA members receive a subscription to Court Review. Non-member subscriptions are available for $35 per volume (four issues per volume). Subscriptions are terminable at the end of any volume upon notice given to the publisher. Prices are subject to change without notice.