Thevantharen Muniandy

Assignment 2

DMII MNRB SCHOLARSHIP & PUBLIC PROGRAM [ NOVEMBER 2011 INTAKE ]

SUBJECT 105 LAW

Assignment 2

Chapters 2 & 3

November 2011

1. a) Who in law is a minor?

5 marks

The Family Law Reform Act 1969 reduced the age of majority from 21 to 18 years and a
person under this age is categorized as infant or minor.

persons below 18 years is referred to I law as an infant or a minor

In Contract Law, special rules apply to them ( due to their inexperience )
In Law of Torts, minors are usually fully responsible for their acts
In Law of Property, minors can own personal property ( eg. clothing, books, sports
equipment or a car ) but not legal estate in land ( eg. house, land etc. )

b) What are minors criminal and civil responsibilities?

marks

In Criminal Law, minors are divided into three classes:i ) 1 to 9 years ( irrebuttable presumption of an inability to commit a crime )
ii) 10 to 13 years ( rebuttable presumption of an absence of criminal intent )
iii) 14 to 18 years ( full criminal responsibility )

Other rules
i ) cannot vote at elections
ii ) cannot marry under age 16
iii ) cannot marry without consent ( of parents ) under age 18
iv ) cannot sit on a jury
v ) cannot make a will ( exception : armed service on active military
service or seaman at sea )
vi ) In civil litigation
* cannot sue in own name ( ie. only through a next friend )
* cannot defend in own name ( ie. only through a litigation friend )
but costs borne by the minor

c)
marks

Briefly explain the significance of Crown Proceedings Act 1947?

The Crown in legal terms, it is more or less equivalent to government. The crown
consists of:

The reigning Monarch

Government Ministers

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Central Government Departments and their staffs of civil servants

The Privy Council
The Armed forces (but not the police, who are not Crown servants).

Originally, the Crown was above the law. Actions against the Crown ( for torts
committed by its servants ) could only be brought through a Petition of Right which
required the consent of the Attorney General on behalf of the Crown
Crown Proceedings Act 1947 was passed to remedy the situation where the effect is
that it :

abolished the legal immunity of the crown

s 40 provides that the Crown cannot be sued or prosecuted in either a
personal or official capacity
the Crown can now be sued in contract or in tort ( subject to limited exceptions
)
the old statutory procedures and Petition of Right are abolished
legal action may now be pursued by ordinary process
the Crown can still refuse to disclose evidence in a case if giving such evidence
would be harmful to the interest of the state ( ie.Public Interest Immunity )
there is no method by which a judgment could be enforced against the Crown

d)
marks

Explain the difference between Partnership and Limited Companies?5

COMPARISON BETWEEN PARTNERSHIPS AND LIMITED COMPANIES

PARTNERSHIPS

LIMITED COMPANIES

No corporate existence
Scope of activities may be changed

Separate legal status from that of the members

Activities defined in MA can only by changed

by mutual agreement
Partners have unlimited

liability

by Special Resolution
Liability of members limited to the value of

(other than limited partners)

All partners normally play an active

shares or guarantee
Management is in the hands of the Board of

role in management
Members generally limited to 20
Details of accounts and affairs may

Directors
No legal restrictions on number of members
Details of accounts and other matters must be

be kept private
Partners must be in business with a

made public
Company may or may not trade for profit

view to profit
All partners must

agree

to

the

Shares (and hence members) of Public limited

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appointment of a new partner

companies may be Freely acquired

2. What is meant by vicarious liability ? Give examples.

20 marks

Particular importance in the field of employers liability. Liability is said to be vicarious

when one person is held liable for wrongs committed by another.
Vicarious liability is not a tort or wrong in itself but a way in which liability may be
imposed. A person may be directly liable for their own torts or vicariously liable for torts
committed by others.
The key example of vicarious liability in tort arises from the relationship of master and
servant, which effectively means employer and employee. The rule is that an employer
is vicariously liable for the torts committed by an employee in the course of their
employment. This means that where a worker injures a fellow employee or visitor, the
victim can claim compensation from the employer, who is vicariously liable.
One reason for imposing liability on the employer is readily apparent that the employer
is much more likely to have the financial means to pay the claim than the individual
employee. The employer is likely to have insurance cover for the accidents of this tort.
In the case of injury to an employee, insurance is (in most cases) compulsory under the
Employers Liability (Compulsory Insurance) Act 1969. A person who engages an
independent contractor to carry out work is not liable for the torts of the latter.
3. Trespass to person and goods are divided into several categories. Explain
each category in detail. Your answer must be supported with relevant case
laws.
20 marks
Trespass to the person takes 3 forms:
1. Assault

any act of the defendant which directly causes the claimant to fear an attack on
their person.

threatening words alone (w/o any accompanying gesture) could amount to an

assault Tuberville v. Savage (1669)
2. Battery

the hostile application by the defendant of physical force by the defendant even
though it may be slight, to the claimant.

assault and battery typically go together but it is possible to have one without
the other a real threat of violence which is not carried out is still an assault,
and sudden attack from behind, where the claimant is never threatened or put in
fear of violence is a battery.
3. False imprisonment

occurs when the defendant imposes total bodily restraint on the claimant,
preventing them from going where they want to go.

false means wrongful no physical contact is necessary.

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imprisonment may be in a house, a prison or mental institution or even a

vehicle. Meering v. Graham-White Aviation Co (1919)

Trespass to the goods

occurs where the defendant directly and intentionally interferes with goods which
are in the possession of another.

taking goods from the possession moving them from one place to another,
throwing things at them or meddling with them.
Heyden v. Smith (1610) cutting down another persons trees,
Wright v. Ramscott (1667) beating his dog and
Hamps v. Derby (1948) shoot another persons racing pigeons.
Conversion

if the defendant deliberately deals with the goods in a way which is inconsistent
with the rights of the person who owns or possesses them they can be sued for
conversion.

stealing goods or selling borrowed goods is a conversation.

wrongfully causing damage to anothers goods will always be a trespass but will
amount to a conversation only where the goods are effectively destroyed or
made useless.

buy a car or other property which has been stolen, the owner may sue in
conversation for the return of the goods.
Torts (Interference with Goods) Act 1977 the collective description wrongful
interference with goods was introduced to cover trespass to goods, conversation
and certain other torts concerning goods. The Act simplified procedures and
remedies relating to these torts but did not change the common law principle.
4. a) What are the essential elements necessary to establish a case of
defamation.
10 marks
For an action in defamation to succeed the following four elements must be presented:
a defamatory statement
reference (of the statement) to the claimant
publication (of the defamatory statement)
damage (in case of slander not actionable per se)
Defamatory statement
A statement is defamatory if it is false and exposes the claimant to hatred,
ridicule or contempt or lower them in the eyes of right-thinking members of society
generally. A distinction must be made between statements which are defamatory and
ones which amount only to vulgar abuse. The former harm a persons reputation
whereas the latter merely hurt their pride. Defamation may be by way of innuendo,
which is where an apparently innocent statement about another has a hidden and
defamatory meaning. In such a case, the claimant must prove the innuendo, that is
establish that persons to whom the statement was published understood it in a
defamatory sense. For example in Cassidy v. Daily Mirror Newspapers Ltd (1929) the

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newspaper published a picture of Mr. Cassidy with a young woman and stated that they
were about to be married. In fact, Mr. Cassidy was already married and Mrs. Cassidy
recovered damages from the newspaper because the picture and story implied that she
and Mr. Cassidy lived together outside marriage, and her friends had understood it in
this way.
Reference to the claimant
The claimant must establish that they were the one identified by the statement.
If they are not mentioned by name they must prove that a reasonable person reading
the statement, and knowing the claimant, would assume that it referred to them. The
reference to the claimant need not be intentional. In Newstead v. London Express
Newspaper Ltd (1940), the defendants published a true statement that Harold
Newstead, a 30 year old Camberwell man had been convicted of bigamy. Unfortunately,
another 30 year old man with the same name (who was not a bigamist) lived in
Camberwell. This statement was held to be defamatory of him. In Hulton v. Jones (1910)
the claimant, one Artemus Jones (who was a well-known lawyer and journalist),
succeeded in defamation against the defendant who had given the name Artemus
Jones to a disreputable character in book which was intended to be fictional.
Where a defamatory statement refers to a whole class of person; such as all
politicians are greedy and corrupt, the harmful effect of the words is so watered down
that an action in defamation is unlikely to succeed, unless the group is so small that the
words can be taken as defamatory of each member.
Publication
A defamatory statement is not actionable unless it is published, that is
communicated to some person other than the claimant. Where no publication is
intended, the defendant will be liable if publication was foreseeable and does, in fact,
occur. For example, it is foreseeable that defamatory remarks on a postcard addressed
to the claimant will be read by others but not remarks contained in a letter sent to their
private address.
Repeating or passing on a defamatory statement is fresh publication and
generally makes the new author liable, even where they are unaware that the matter is
defamatory. However, mere mechanical distributors, such as a newsagents,
booksellers and libraries will not be liable unless they either know or ought to know that
the work they are distributing is libelous.
Special rules apply in the case of husband and wife. No publication occurs where
the defamatory statement is made to the spouse of the defendant and no other person,
but a defamatory statement made to the spouse of the claimant is deemed to have
been published.
Damage
Damage need to be proved only in cases of slander not actionable per se. This
must be a material loss having some financial value.

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b)State the difference between libel and slander in so far as it relates

to the issue of proving damages
10 marks
Libel
Libellous statements may be contained in writing or take the form of pictures or
drawings. In Monson v. Tussauds (1900), the claimant successfully sued for libel when
the defendants displayed his effigy next to those of convicted murderers in the chamber
of horrors of a waxwork museum. A defamatory radio or television broadcast is also libel
(Deframation Act 1952), as is a defamatory theatrical performance (Theatres Act 1968).
Libel can be a crime as well as a tort if it is sufficiently serious. It has always been
regarded as a more serious wrong than slander because written words usually have a
more widespread and lasting effect than speech. Libel has, therefore always been
actionable per se (without proof of damage).
Slander
Slander will usually take the form of defamatory speech or possibly defamatory
gestures. Slander, in itself, is a civil wrong only (although spoken words may constitute
another crime such as blasphemy or sedition).
Slander is not generally actionable per se and damage must be proved, except in four
cases, where damage is assumed to have occurred. These four cases are where the
defendant falsely alleges or implies that the claimant:

is guilty of a crime punishable by imprisonment

is suffering from certain infectious or contagious diseases
is unfit to carry out their profession, calling, trade or business
in the case of a woman, is guilty of sexual immorality (Slander of Women Act
1891).

In cases other than mentioned, special damage must be proved. This must be a
material loss having some financial value, such as loss of employment, or loss of
financial benefits through the refusal of persons to contract with the claimant.
5. Mr. John intends to commence a negligence suit against Mr. Robert. Explain
what the three essential ingredients are under the law of negligence
before Mr. John files a negligence action against Mr. Robert.
20 marks
There

are 3 essentials for an action in negligence to succeed:

a duty of care owed by the defendant to the claimant;
a breach of duty by the defendant;
damage suffered by the claimant as a result of the breach:
the damages is not to remote
the damage suffered must reasonable foreseeability

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Duty of care

originally the law recognized established categories where a duty of care was
owed

general principle governing the duty of care was established in the famous case
of Donoghue v. Stevenson (1932). The important was the general principle which
the case established, known as the neighbour principle or neighbour test.

neighbour principle is one of reasonable foreseeability a duty of are is owed

to another person if it is reasonable foreseeable that they will be affected by
ones acts or omissions.

in addition to foreseeability, they emphasise the need for sufficient proximity

(closeness) between the defendant and the claimant and a duty of care should be
imposed only where it is reasonable to do so.
Breach of duty

It occurs when the defendant fails to do what a reasonable man would have
done in the circumstances, or does what a reasonable man would not have done
breach occurs when the defendant fails to take reasonable precautions.

Under English Law, the standard by which the defendants behaviour is judged is
objective the same standard applies to everybody.

A defendant who holds himself out as having some particular skill or ability will
be expected to exercise that skill in a competent fashion professional person
(doctor) will be judged by the standards prevailing in the medical profession and
not according to the medical knowledge of the man in the street. Wilsher v.
Essex Health Authority (1986)
Whether a breach has occurred is a question of fact, to be decided by the court in
the light of all the circumstances of the case, such as:

the magnitude of the risk involved in the defendants activities (i.e. the likelihood
of damage being caused and the potential seriousness of such damage);

the ease with which the risk could have been eliminated or reduced and the
potential costs involved;

the current state of scientific or technical knowledge.

The greater the risk presented by the defendants activities, the greater will be
the care expected of them hazardous activities, the utmost care and the
greatest precautions will be demanded, even if the costs involved are high.
Risk or injury is trivial or remote, the courts will not expect any elaborate and
expensive precautions to be taken the defendant is expected to take
reasonable precaution in any case, what is reasonable will depend on the
circumstances.
Bolton v. Stone (1951) [a case based on negligence and nuisance] the
claimant was struck by a cricket ball while standing at a bus stop outside a
cricket ground. The ball had been struck a huge distance from the wicket (about
120 metres) and had cleared a high wall. Balls had been driven out of the ground
on only about 6 occasions in the last 35 years and no one had ever been hit. It
was held that there was no negligence on the part of the cricket club. The risk of
injury was clearly very small and the precautions which had been taken were

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generally adequate. The risk could have been eliminated (perhaps by building a
dome over the ground) but the cost of this was obviously not justified.
Damages

any degree of damage is actionable in negligence unless it is absolutely trivial.

damage may take a number of forms; i.e. death, bodily injury and damage to
property.

there are special considerations where the damage takes the form of nervous
shock or financial loss.
Causation and remoteness of damage

a defendant is not liable in negligence (or tort) for every loss which has some
connection with their wrongful act.

law attempts to place a reasonable limit on the defendants responsibilities by

releasing them from liability where the damage is too remote.

test for remoteness of damage was based purely on causation the defendant
was liable for any injury or damage which was caused directly by their
negligence, but was not liable for indirect consequences.

This principle was rejected by the Privy Council in Overseas Tankship (UK) Ltd v.
Morts Dock and Engineering Co Ltd (1961) often cited as The Wagon Mound
(name of the ship) established a new test based on foreseeability damage
would be too remote if it was of a type which was not reasonably foreseeable.
Facts men employed by the defendants negligently split fuel oil into Sydney Harbour.
The oil mixed with cotton waste and other debris, spread to the claimants wharf where
welding operations were causing sparks to fall into the water. The sparks caused the oil
to ignite, setting fire to the claimants wharf.
Decision although the fire was a direct result of the defendants negligence the Court
held that the damage was too remote because it was of a type which was not
reasonably foreseeable. At the time, apparently, it was not known that oil could catch
fire in this way.
Defendants owed a duty of care to the claimants because some damage was
foreseeable, but the type of damage which did occur was not foreseeable.
Therefore, it was too remote.
The Wagon Mound decision did not alter an old common law rule that you take your
victim as you find him. This rule applies in what are known as thin skull cases
where the damage is not reasonably foreseeable because it results from some preexisting physical weakness or defect in the claimant of which the defendant is not
aware.
Smith v. Leech Brain and Co. Ltd (1961) a worker had pre-malignant cancer of the lip
which was activated when a blob of molten metal struck him through the negligence of
a fellow employee, and the died of the disease. Although death from such an apparently
trivial injury was quite unforeseeable, the employers were fully liable. Cases such as
this are an exception to the general rule that no claim lies for damage which is not
foreseeable.
Although the main test for remoteness is now reasonable forseeability the issue of
causation is still important.

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If defendants negligence was not the direct cause of the damage they will not be
responsible for it and the issue of foreseeability need not even be considered.
The chain of causation leading from the defendants negligent act is broken by a
novus actus interveniens (new intervening cause), the defendant will not be
responsible for any damage which occurs subsequently.
Hogan v. Bentinck Colliery (1949) the claimant was injured at work due to a breach of
duty by his employers. He was taken to hospital and his thumb was amputated as a
result of faulty medical diagnosis. The liability for the loss of the thumb and residual
pain did not fall to the employers as the negligent medical action was a new intervening
cause.

Submission Date: 1st December 2011