Case study of potential liability in the law of tort - Free Essay Example

Sample details Pages: 11 Words: 3160 Downloads: 5 Date added: 2017/06/26 Category Law Essay Type Case study Tags: Act Essay Tort Essay Did you like this example? Introduction In this paper, I will advise Druid Sons Ltd as to its potential liability in the law of tort, specifically in regard to the losses and injuries caused to David and Percy, respectively, by the discharge of excess chemical fumes from its waste treatment plant; and, more generally, in regard to potential claims from nearby residents and businesses in regard to the interference caused to their TV, broadband and mobile phone reception. While it is likely that each of these potential categories of claim would be brought in the tort of private nuisance[1], it should be noted that this tort has developed into two separate categories, defined by the nature of the damage suffered, each with its own particular legal requirements. Before one can advise on which category should apply in any given case, it is first necessary to understand the historical and, to some extent, public policy context of this development: Historically, the tort of private nuisan ce was considered to be a strict liability tort. Don’t waste time! Our writers will create an original "Case study of potential liability in the law of tort" essay for you Create order However, during the Victorian era, there was growing concern that the strict liability nature of this tort would interfere with the industrialization process[2]. Therefore, in the case of St Helens Smelting Company v Tipping (1865)[3] a distinction was introduced between the approach which should be adopted in cases where à ¢Ã¢â€š ¬Ã…“the alleged nuisance produces material injury to [a] property,[4]à ¢Ã¢â€š ¬Ã‚  and the approach which should be adopted when the nuisance complained of involves à ¢Ã¢â€š ¬Ã…“personal inconvenience and interference with oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s enjoyment, oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s quiet, oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s personal freedom [or] anything that discomposes or injuriously affects the senses or the nerves[5]à ¢Ã¢â€š ¬Ã‚  In the former case, the tort of private nuisance was to be considered a strict liability tort; whereas, in the latter case, the Court, when determining whether or not to impose liability, was deemed entitled to consult such factors a s the reasonable residential expectations[6] and also the personal sensitivities of the complainant. With this development in mind, let us now turn to examine the likelihood of David and Percy being able to bring successful claims against Druid Sons in the tort of private nuisance, and also the likelihood of claims being brought by other residents for interference to their TV, broadband and mobile phone reception: David v Druid Sons in the tort of private nuisance: The first thing to note is that David will only be able to bring a claim against Druid Sons if he possesses a proprietary interest in the land in question (i.e. the land on which the grass was being grown)[7]. On the facts, there is no indication that David does not possess such an interest. In regard to which branch of the tort will apply in this case: As per our earlier analysis, because the damage suffered by David is material in nature, in that its extent does not depend upon his own preferences and/or sensitivities, the strict liability branch of the tort of private nuisance will be applicable, and it is therefore irrelevant whether or not the Druid Son recycling plant existed before David commenced using his land for rearing Jersey cows[8]. In regard to proving that the damage suffered was actually caused by the excess chemical discharge in question: So long as the existence of this excess discharge can be proved on the balance of probabilities and also that the chemicals in question are likely to interfere with the health of livestock, if ingested, then the Court will not require David to prove that it was this chemical discharge which caused his Jersey cows to become ill. This damage will likely be presumed in accordance with the principle handed down in the case of Fay v Prentice (1845)[9]. In regard to David being able to satisfy the test of remoteness applicable to the tort of private nuisance: In the case of McKinnon Industries Ltd v Walker [1951][10] it was held th at damage caused to crops, by the excess emission of Sulphur Dioxide, from a neighbouring industrial plant, was not too remote a type of damage to be deemed actionable in this tort. In my opinion, if this type of damage is to be considered actionable in the tort of private nuisance, then so too should the damage arising as a foreseeable and direct result of crops becoming contaminated in this way: Where grass crop is being grown for the purpose of feeding livestock then, if one accepts that the damage to these crops is actionable, then it follows that damage to the livestock as a result of their eating these crops will also be deemed actionable by the Courts, although only to the extent that this damage has affected the value of the land[11]. In regard to the defences available to Druid Sons: It is unlikely that it will be able to rely upon the defence of statutory authority, even if it has complied with its statutory obligations under the relevant environmental regulatory instr uments, unless it can be shown that the excess emissions complained of were an unavoidable result of the licensed industrial activities being undertaken[12]. In this case, the excess emissions could have been prevented, presumably, by employing a higher capacity fume collection system. It will also be impossible for Druid Sons to rely upon the defence of twenty yearsà ¢Ã¢â€š ¬Ã¢â€ž ¢ prescription, because this would require evidence that the plant has been emitting excess amounts of chemical compound for a continuous period of twenty years, which is not the case, as the excess emissions complained of were à ¢Ã¢â€š ¬Ã‹Å"unexpectedà ¢Ã¢â€š ¬Ã¢â€ž ¢ and a result of a à ¢Ã¢â€š ¬Ã‹Å"particularly busy period of workà ¢Ã¢â€š ¬Ã¢â€ž ¢. In conclusion, it is likely that David will be able to bring a claim against Druid Sons in the private tort of nuisance; although the damages available to him will be limited to the damage caused to his the value/ amenity of his land. In this reg ard, he will not be able to recover the cost of his veterinary bills via the tort of nuisance, but will be entitled to some compensation for the temporary (or permanent) loss of the amenity of his land, presuming that he had to relocate the cows to another field, or decontaminate the land in order to restore its utility. In order to recover these specific veterinary costs, it will be necessary to bring a concurrent claim in the tort of negligence. David v Druid Sons in the tort of negligence: While there will be no difficulty establishing a duty of care, in light of the physical proximity of the parties[13], because the emissions in question were à ¢Ã¢â€š ¬Ã‹Å"unexpectedà ¢Ã¢â€š ¬Ã¢â€ž ¢, it might be possible for Druid Sons to argue that they were not in breach of this duty because there was no way that any waste plant, however competent, would have predicted these effects. If the Court is satisfied that the plant did adhere to all relevant professional standards, it is highly unlikely that a claim for negligence brought by David would be successful[14]. However, if the excess emissions could have been predicted as a result of accepting a larger than usual amount of work, then it is likely that Druid Sons will be considered to have acted in breach of its duty of care towards David. However, in order to claim damages for the veterinary costs, David must prove that, on the balance of probabilities, his cows would not have required treatment à ¢Ã¢â€š ¬Ã‹Å"but for[15]à ¢Ã¢â€š ¬Ã¢â€ž ¢ the negligence of Druid Sons. The result of this enquiry will depend upon expert testimony. Presuming that factual causation can be established, the final element of the tort of negligence which must be satisfied is the test for remoteness of damage. The appropriate test in such cases is one based upon factual assessments of reasonable foreseeability[16]. I see no problem here: In the case of Stewart v West African Terminals Ltd [1964][17] it was held that à ¢ â‚ ¬Ã…“it is not necessary that the precise concatenation of circumstances should be envisagedif the consequence was one which was within the general range which any reasonable person might foreseeand anticipate.à ¢Ã¢â€š ¬Ã‚  In conclusion, presuming that David will be able to prove factual causation on the balance of probabilities, he will likely be able to bring a successful claim in the tort of negligence to recover the costs associated with the treatment of his cows. Percy v Druid Sons in the tort of private nuisance for the damage caused to his crops: The major difference between Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s claim in the tort of private nuisance and that which may be brought by Percy is the fact that Percyà ¢Ã¢â€š ¬Ã¢â€ž ¢s land is several miles away from the plant whereas Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s land is immediately adjacent to it. Therefore, even if the Courts presume damage in accordance with the principle espoused in the case of Fay v Prentice (1845)[18], ther e may be difficulty in proving that the damage in question was reasonably foreseeable. After all, the decision in the case of McKinnon Industries Ltd v Walker [1951][19] was made in regard to damage caused to crops on a neighbouring farm. This assessment will depend upon evidential considerations, such as the likelihood of emissions travelling several miles, the degree of dissipation which would likely have occurred over that distance and how these factors ought to affect the reasonable foreseeability of the kind of damage suffered by Percy. Presuming that the test for foreseeability can be satisfied on the balance of probabilities, then Percyà ¢Ã¢â€š ¬Ã¢â€ž ¢s claim in this regard will likely be successful and he will be able to recover the losses sustained to his land[20]. Percy v Druid Sons in the tort of private nuisance for personal injury: Generally, damages for personal injury are not recoverable in the tort of private trespass. However, in the Hunter case it wa s held that a claimant can recover for his loss of amenity (of his land only) as a result of the person injury in question, for example if the value of the land has decreased as a result of it being dangerous to occupy. In this case, because the excess emission causing the damage was a one-off à ¢Ã¢â€š ¬Ã‹Å"unexpectedà ¢Ã¢â€š ¬Ã¢â€ž ¢ event, it will be difficult for Percy to argue that the private nuisance has caused the value of his land to significantly decrease in this way. Percy v Druid Sons in the tort of negligence for personal injury: So long as it can be shown that emissions of the kind in question are capable of travelling several miles and still causing damage at that distance, then the analysis provided earlier in regard to Davidà ¢Ã¢â€š ¬Ã¢â€ž ¢s claim against Druid Sons in the tort of negligence will be equally applicable to Percyà ¢Ã¢â€š ¬Ã¢â€ž ¢s claim. If these same requirements are satisfied, then Percy will be entitled to claim damages for his pain s uffering and loss of amenity [not only as a result of the attack itself but also in regard to the distress associated with recalling/ remembering that event[21]] and also for his pecuniary losses [as a result of not being able to work for a period of 2 weeks[22]]. If there is any chance that Percy might again have to take time off work, as a direct result of his original attack, then he may also be granted a provisional award[23]. A claim by local residents and businesses whose TV, broadband and mobile phone receptions are interfered with by the general omissions of the Druid Sons Plant: While it has been held at law that the interference, by a building, of TV, broadband or mobile phone reception cannot amount to a nuisance in the law of tort[24], this does not necessarily apply to interference caused by emissions from a building. After all, such damage may substantially affect the amenity of land; for example, it would be more difficult to sell a house which was unable to re ceive TV signals at that same price as a similar property which was able to receive TV signals. In this regard, presuming that the degree of interference is significant, then the test of substantiality as handed down in the case of Sedleigh-Denfield v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Callaghan (1872)[25] would likely be satisfied. However, the defence of proscription would be able to defeat such claims if the plant has been interfering with such signals for a continuous period of twenty years and this interference has never been challenged successfully[26]. Likewise, if Druid Sons can prove that all such plants necessarily interfere with these signals, then any claims arising could be defeated on the basis of statutory authority[27]. If neither of these defences apply, then it is possible that Druid Sons could face multiple claims by nearby residents and businesses in the tort of private nuisance. Conclusions: In regard to a potential claim by David in the tort of private nuisanc e: It is likely that such a claim would be successful and that David could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material damage caused to his land. In regard to a potential claim by David in the tort of negligence: Presuming that David can prove, on the balance of probabilities, that his cows would not have required veterinary attention but for the excess toxic emissions released for the Druid and Son waste plant, then his claim will likely be successful and the company will be liable to meet the costs of the said treatment. In regard to a potential claim by Percy in the tort of private nuisance for the damage caused to his crops: So long as it can be proved that it is capable for emissions to cause damage over a distance of several miles, then it is likely that such a claim would be successful and that Percy could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material da mage caused to his land. In regard to a potential claim by Percy in the tort of private nuisance for the personal injuries which he has suffered: Such a claim will not be possible. In regard to a potential claim by Percy in the tort of negligence for the personal injuries which he has suffered: Such a claim would likely succeed so long as it can be proved that Percy would not have suffered his asthma attack but for the excess toxic emissions released for the Druid and Son waste plant and also that this type of damage was a reasonable foreseeable consequence of excess emissions being released. In regard to claims arising from local residents and businesses in regard to the interference caused to their TV, broadband and mobile reception by the plantà ¢Ã¢â€š ¬Ã¢â€ž ¢s emissions: If the plant has been interfering with these signals for a period of at least twenty years or such interference is a unavoidable consequence of operating such a plant, then such claims would likely fa il. Otherwise, such claims would be likely to succeed. References: St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642 Brenner, J. (1973) Nuisance Law and the Industrial Revolution. 3 Journal of Legal Studies 403. Harlow, C. (2005) Understanding Tort Law. Sweet and Maxwell Publishing. Sturges v. Bridgeman (1879) 11 ChD 852 Miller v Jackson [1977] QB 966 Bliss v Hall (1838) 4 Bing NC 183 Southwark LBC v Mills [2001] 1 AC 1 Fay v Prentice (1845) (1845) 1 CB 828 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 Hunter v Canary Wharf [1997] 2 All ER 426 Winfield and Jolowicz (2002) Winfield and Jolowicz on Tort [W.V.H. Rogers (ed.)]. Sweet and Maxwell Publishing. Allen v Gulf Refining Ltd. [1981] AC 1001. Vancouver General Hospital v McDaniel (1934) 152 LT 56 Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. Rigby v Hewitt (1859) 5 Ex. 240, at 243. Stewart v West African Terminals Ltd [1964] 2 Lloydà ¢Ã¢â€š ¬Ã¢â€ž ¢s Rep 371 Sedleigh-Denfield v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Callaghan (1872) 8 Ch App 8 Phelan v E. Cumbria HA [1991] 2 Med LR 419. Hussain v Lancaster CC [1999] 4 All ER 125 Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281. Footnotes [1] Brenner (1973) pp 403-4 [2] As Harlow (2005) p84 writes: à ¢Ã¢â€š ¬Ã…“If landowners were entitled to protect the rural uses and amenities of their land through a tort of strict liability, progress, and particularly industrial progress, could be brought to a standstill.à ¢Ã¢â€š ¬Ã‚  [3] 11 H.L.C. 642 [4] Lord Chancellor, Lord Westbury in St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642, cited by Harlow (2005) p85 [5] Ibid. [6] For example, what a resident would reasonably consider a private nuisance in Berkley Square (an highly residential and affluent area in Central London) may not be considered so for residents living in Bermondsey (an highly industrial area outside the centre of London). This was a point made by Lord Justice Thesiger in the case of Sturges v. Bridgeman (1879) 11 ChD 852 at 865. It was this reasoning that was controversially employed by Lord Denning in the case of Miller v Jackson [1977] QB 966, to argue that a claim of private nu isance brought by the neighbouring resident to a village cricket ground should be defeated; namely, that because he chose to move into a property that was adjacent to a cricket ground, he ought reasonably to have expected his property to be damaged by high-flying balls, from time to time. However, because the damage in question was material, the majority of the Court of Appeal felt bound to follow the decision handed down in the case of Bliss v Hall (1838) 4 Bing NC 183, in which it was held that coming to nuisance is no defence in cases which involve material damage, i.e. damage which exists to the same extent regardless of the claimantà ¢Ã¢â€š ¬Ã¢â€ž ¢s personal preferences and sensitivities. If the type of damage in the Miller case had been non-material discomfort, for example arising from the noise of the balls being struck, then Lord Denningà ¢Ã¢â€š ¬Ã¢â€ž ¢s reasoning would have been appropriate. For an example of a case where such reasoning was employed successfully to defe at a claim of private nuisance, see Southwark LBC v Mills [2001] 1 AC 1. [7] Hunter v Canary Wharf [1997] 2 All ER 426 [8] See the analysis provided in footnote 6 in regard to the application of the principle espoused in the case of Bliss v Hall (1838) 4 Bing NC 183. [9] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: à ¢Ã¢â€š ¬Ã…“If damage were not presumed, it might be difficult to establish that any one act had caused it.à ¢Ã¢â€š ¬Ã‚  [10] [1951] 3 DLR 577. [11] See the dictum of Lord Lloyd in the Hunter case [1997] 2 All ER 426, at 442. [12] Allen v Gulf Refining Ltd. [1981] AC 1001. [13] As Winfield and Jolowicz (2002) p 141 note: à ¢Ã¢â€š ¬Ã…“An occupier is under a duty to take steps to remove a hazard on his land which threatens neighbouring propertyà ¢Ã¢â€š ¬Ã‚  [14] Vancouver General Hospital v McDaniel (1934) 152 LT 56, at 57. [15] Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. [16] Rigb y v Hewitt (1859) 5 Ex. 240, at 243. [17] 2 Lloydà ¢Ã¢â€š ¬Ã¢â€ž ¢s Rep 371, at 375 [18] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: à ¢Ã¢â€š ¬Ã…“If damage were not presumed, it might be difficult to establish that any one act had caused it.à ¢Ã¢â€š ¬Ã‚  [19] [1951] 3 DLR 577. [20] We have presumed that Percy has a proprietary interest in his land, as per the decision in the case of Hunter v Canary Wharf [1997] 2 All ER 426. [21] Phelan v E. Cumbria HA [1991] 2 Med LR 419. [22] Winfield and Jolowicz (2002) p769 at 22.23 [23] Ibid. [24] Hussain v Lancaster CC [1999] 4 All ER 125 [25] (1872) 8 Ch App 8 [26] Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281. [27] Allen v Gulf Refining Ltd. [1981] AC 1001

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You could define art as vision or as intuition, as Benedetto Croce does in his essay â€Å"What is Art? † By this definition, the works of someone with a beautiful vision would be beautiful, and art would be an external manifestation of an internal state. The importance of art is related to the nature of our human built environment, and whether we create it to be a comfort or a torment. To understand the place of art and beauty in contemporary culture, you need to turn to history. We will write a custom essay sample on Art and Human Life or any similar topic only for you Order Now You could define art as vision or as intuition, as Benedetto Croce does in his essay â€Å"What is Art? By this definition, the works of someone with a beautiful vision would be beautiful, and art would be an external manifestation of an internal state. The importance of art is related to the nature of our human built environment, and whether we create it to be a comfort or a torment. To understand the place of art and beauty in contemporary culture, you need to turn to history. Read more: Why Is Art Important in Life? | eHow. com http://www. ehow. com/about_6134201_art-important-life_. html#ixzz1MlGvu7yA Philosophy Art, like humor, can sometimes by deadened when dissected too thoroughly. Writers as accomplished and diverse as Leo Tolstoy in â€Å"What is Art† and Susan Sontag in â€Å"The New Art, A Critical Anthology† have pondered the meaning and function of art, yet it remains a nebulous term. Perhaps Picasso, in an interview with Marius de Zayas in 1923, best captured the elusive nature of art when he wrote that â€Å"art is a lie that makes us realize truth. † Challenges The great art historian Ananda Coomaraswamy, in his book, â€Å"The Transformation of Nature in Art,† wrote that â€Å"museums are the places were we’ve put the things that we’ve forgotten how to use. While museums have allowed millions to see the great works of art from throughout history, they also pose the threat of separating art from everyday life. William Morris believed that this separation was one of the causes of modern alienation, and that art should not be locked away in special buildings, but should be an integral part of society’s da ily life. When beauty and care are inherent in everything that is done, â€Å"art† in fact ceases to exist as a separate entity, and becomes an aspect of everything that we do. Future. The future of art remains uncertain. According to Morris, speaking of his admiration for medieval craftsmen who wed artistic vision with a mastery of handcraft, the reunion of the two could overcome the dichotomy between art and life, and lead to a culture re-infused with a sense of beauty, wonder, and singularity. A reunion of what we now know as â€Å"fine art† with the greater population of the world would, as Morris put it in his essay â€Å"The Revival of Handicraft,† lead to â€Å"the unwearying pleasure of tasting the fullness of life. † Read more: Why Is Art Important in Life? | eHow.com http://www.ehow.com/about_6134201_art-important-life_.html#ixzz1MlHaEcDs How to cite Art and Human Life, Papers

Portraiture free essay sample

We read these components of the head and he face for mood, temperament and character in relation the ethnicity, sex and age, and for their attitude, including attitude towards the viewer. We can also understand something of the value of the face in photography by considering the close-up in cinema. Facial expressions signify a repertoire of states, indicating the potential mood of a person wearing them: anger, sadness, frustration, melancholy, etc. These conventions are articulated across different representational systems, like art, theatre, television, cinema and photography. The face as a close-up shot in such ractices thus serves several functions: it puts the viewer into an intimate position with the person seen; it shows the commodity and offers a point of psychological identification; and it gives things a value and mood. Obviously, different types of face by themselves can connote different things. Such logic depends on stereotypes, the typical features of signs. We will write a custom essay sample on Portraiture or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Stereotypes, like genres, help to organise our expectations about a character, so actors and actresses are often chosen to play parts where their face already signifies a basic set of social and personal characteristics, even before they act. Pose. The pose of sitters is itself a visual argument, a form of rhetoric. Whether the person in the picture is standing upright, slumped in a chair, thinking, has sternly folded arms or has them dangling loosely by their sides, such postures are read in combination. I t is the Job ot the portraitist to spot or direct these combinations, to understand what they signify together. A pose can be a self-consciously adopted manner intended to express a specific cultural identity, e. g. as goth, punk or business manager. Clothes. Clothing and the various accessories that go with it all contribute to the rhetoric of he portrait too. Clothes indicate a great deal about someones social identity and how they relate to it. A uniform, for example, makes it easy to distinguish a factory worker from a police officer, a nurse from a doctor. Although it is not a formal uniform, denim Jeans, invented in America, signify a casual dress code. They have become universal in value as a sign of equality and a democratic bisexual dress code. The body too is caught up in this rhetoric of clothing as difference. Which part of the body is covered or uncovered, clothes or unclothed is crucial in fashion. Roland Barthes argued that fashion is located in each gap of clothes, the parts of the body that are revealed by fashion clothing. Although we are not formally trained in the semiotics of clothing most people are practised in it. Even when someone says they do not care what clothes they wear, this still says something about them too. The well-worn stereotype of an English academic, the absent-minded professor type is someone who is focused on their work that they have no time or interest in other things, like their clothes. Yet strangely they do all seem to wear the same type of lothes: a dusty tweed Jacket and equally worn baggy trousers. Of course such images are stereotypes and not all academics are like this, but it shows that even functional and consciously non-fashion dress codes still signify too. There is no escape, it seems, from clothes having a meaning. Location/Setting. The setting or background behind the sitter, whether in a studio or an everyday exterior/interior location provides a context for the sitter. It quite literally locates the sitter within a social place and we Judge their position accordingly. In fashion hotography, editorial portraiture, family pictures, documentary or even a police mugshot, the perceived location is important. In cinema, advertising, fashion and even art photography, location scouting is crucial to finding places and spaces that will provide the right connection to the character in the picture. An urban back alley is the typical location for villains to be seen as villains. In fashion, a winter coat might look good against the same kind of urban space background, while a summer dress or bikini in that setting may seem rather too Vulnerable.