Tort Law Assignment Sample- Contract and Tort Problem

QUESTION 1

Critically assess the justifications for the general rule that an individual is not liable in tort for loss or injury resulting from his/her passive inactivity (the pure omissions rule).

ANSWER 1

In the case of tort law and negligence, the omissions rule holds a very strong hold, cause and effect on the law. According to this rule, liabilities for omissions exist only exceptionally. These special events or circumstances involve the defendant creating new or increased risk or danger, possessing powers of control over the risk, being in occupation of land, or having assumed responsibility for the risk or for the plaintiff’s safety. Yet despite of this commitment to the rule, both the justification in the course of imposing special requirements over omissions liability and distinction between acts and omissions cannot be well understood. This leads to a situation where the distinction is often misapplied, and is frequently challenged.

Normally, in respect to pure omissions no duty can be imposed – that is, the events where sometimes the defendant has not created any danger or harm to the complainant or the claimant but fails to prevent the person from sustaining any harm. There may be a number of reasons for this.

The society’s focus over the modest aim of reducing wrongdoing instead on the more ambitious one of encouraging good deeds is high. On the other side in such situations a large number of potential defendants prove to be a failure to act. For example, there is no duty to rescue even if the act of rescue could be done without any personal risk.

The law considers a restrictive approach on imposing liability in relation to the omissions. There is a difference identified by the law and draws a distinction between misfeasance, that is, where a party does an act negligently, and non-feasance, that is, where a party does nothing at all. Omissions are dealt under the term of non-feasance. The general rule is that there is no liability for an omission.

Stovin v Wise [1996] 3 WLR 389     House of Lords

[sociallocker id=794]Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. A junction was pulled out of her that resulted in the hampering of the visibility of traffic because a bank of earth was topped by a fence (Association, 2008). Mrs Wise was held 70% to blame by the trial judge for the accident and the rest 30% blame was held on Norfolk County Council  because it was already known to them that the junction was dangerous and they neglected the same and did not take any steps to make it safe. The Council appealed.

Held: The council was not considered liable as it is taken as a liability related to an omission. Only three accidents were reported in the past twelve years, thus, it will not be enough to render the junction a ‘cluster site’. At least five accidents in three years are required under the Council’s policy for prioritizing funding.

 Lord Hoffman on imposing liability for omissions:

“There are sound reasons why omissions require different treatment from positive conduct (Kortmann, 2001). The law states one thing that a person who is undertaking any activity has to take utmost care that his activity will not cause damage to others. The other thing that the law requires is that a person who is not doing anything in particular will be required to take necessary steps in order to prevent others from suffering harms caused due to the acts of third parties or natural causes .”

Thus, a person seeing a child drowning in shallow water, is under no a legal obligation to save the child and will incur no liability if he fails to save the child even if he tried or not to save the child. But if the person attempts to save the child, and in doing so, acts negligently, carelessly and causes harm, he becomes liable. This rule is still under debate and discussions and it can be argued that a moral obligation to act may be there and a need for the law to look into it should be there and reconsider this (Dagger, 2007). However, an  exception to this rule is there, where a duty of care will be imposed by the law in certain situations.

But where the defendant voluntarily accepts or agrees to act for the responsibility, his latter fails to do so will render him liable

Barrett v Ministry of Defense [1995] 1 WLR 1217

In English Law, the starting point in a situation for any such consideration is the principle that is being pronounced by the Lord Goff in the House of Lords (the UK’s highest appeal court) in Smith v Littlewoods Organization Ltd [1987] 2 AC 241 that “the common law does not impose liability for what are called pure omissions”, in other words, no general duty of care is owed by any one person in the way to prevent harm occurring to another. Thus, if English law is applied, then those in the bible story who passed the wounded man were entitled to do as they did before the Samaritan came along (JAECK).

This shows that even if there was a moral duty or a moral obligation, still the English Law and courts did not hold any liability for the act of omissions.

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A duty to act only arises where there is a relationship which gives rise to such a duty. Such as the relation of principal-agent, master-servant, parent-child, teacher-child. Because under these relationships there is not a moral but an actual or legal obligation, responsibility and an act of omission under these relations can be held liable for any loss or damage.

So it is well justified to reduce or remove liabilities for the act of omissions under the pure omissions rule, but there may be some claims for the factors attached to every case. Thus it all depends upon the facts and circumstances of a case, but according to the pure omissions rule there stands no legal obligations and thus no liabilities.

QUESTION 2

‘The medical condition known as post-traumatic stress disorder has had a profound impact on the development of legal principle.’ Critically discuss.

ANSWER 2

Post Traumatic Stress Disorder (PTSD) is considered to be a mental disorder or illness that is triggered by major trauma, normally an event which is usually not a part of one’s culture or personal development.  Events like crimes involving rape and domestic abuse and violence, an attack by terrorists, a devastating natural disaster, wartime atrocities and a catastrophic accident can permanently affect a person. Even a demise of a loved one, a “normal” event, may trigger PTSD.

Signs of PTSD may arise after the traumatic event has happened or is still happening. They include avoidance of situations that evoke the event; anger and irritability; depression sometimes so severe that it  might lead to violent and frightening behavior; nightmares and flashbacks; depression; hyper alterness; increased substance abuse; guilty feelings; sight, sound and smell recollection; negative world view; fear and anxiety; and decreased sexual activity.  These behaviors might be visible within some time, may be a few months of the trauma or may be years later, depending upon how the aggrieved is able to take, handle, cope or fight against the reactive feelings (What is Post-traumatic Stress Disorder (PTSD)?, 2008). Not every person who undergoes a traumatic event experience PTSD, even the personality and genetic makeup has some castings and effects on the chances of developing PTSD.

Post-traumatic stress disorder (PTSD) is one of the anxiety disorders recently included in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III). ¹ The disorder refers to the psychological sequel that may follow a significant stressor (Friedman, 2013). The military refers PTSD as “war neurosis,” “shell shock,” and “combat neurosis.”

PTSD has recently gained attention as a means of legal defense. “Innocence by reason of insanity” forms the main defense under PTDS.

Effect of PTSD on Law–

The law recognizes that the mental illness caused due to PTSD can limit the mental capacity of a person to act responsibly. The PTSD is now recognized by the law as a factor causing to diminish a person’s mental capacity as PTSD is now recognized by the mental health professionals as a mental illness or a personality disorder.  Such persons would qualify to be judged by the judges, the jury with a different and a bit more lenient, standard than compared to persons who are considered “sane.”

PTSD is now used as a defense in both the laws, that is, civil and   law (LaMance, 2011).  For example, in civil cases, people can use this defense under, a workers’ compensation claim, and disability insurance litigation.  A complaint can be also be made against an employer for providing a hostile and improper or unfavorable work environment or not providing enough with PTSD as mentioned or described by the Americans with disabilities act (Ada).  An employer’s wrongdoing or negligence may lead to a claim of “wrongful discharge” that might include allegations of severe emotional distress, harassment, or even workplace violence.

In criminal cases, an accused person can now take a defense of “rape trauma syndrome,” or “battered woman syndrome” or insanity. The law now recognizes the “battered woman” defense. The above mentioned defenses are all based on the findings of PTSD and are used to prove that the person who committed the crime, did the act under the influence of this psychotic disorder.  The courtroom testimony of reliable expert witnesses can help to determine if a finding of PTSD will prove to be a merit in a particular case or not (Trimble, 1985).

Claims in defense of PTSD have been increasing.  Judges’ thinking about the validity of PTSD has also risen because the many factors involved with a diagnosis make it possible to manipulate a PTSD claim.  Difficulties arise in validating PTSD claims range from identifying the traumatic event, then to prove delayed onset PTSD to and identifying the various symptoms (Jordan, Howe, Gelsomino, & Lockert, 1986).  Also, events which once were regarded as “normal,” such as the death of a family member, are now considered to be potentially “traumatic.”  For these reasons, judges try to find a direct link between the claim and the disorder; an evidence can be admitted by a proof of PTSD, but it should prove that actual relevant PTSD symptoms are present and affect the matter.

PTSD is now widely used as a mitigating factor or extenuating or defense in criminal cases, which is can also be applied to civil law where there are money damages. Since psychological injuries are now recognized as being devastating and harsh as physical injuries, the courts have started considering the claims under PTSD matters and PTSD, in its own right, is gaining popular recognition and acceptance. The psychiatric expert testimony has become more reliable because now the medical community have found how to diagnose PTSD, these claims are more difficult to fake and, when brought to court, these taken even more seriously.

PTSD diagnosis has implications on a variety of legal matters, both civil and criminal. For example:

In Civil Cases: In the course of bringing a personal injury lawsuit, people can now claim damages under the defense of PTSD:

• Failing to accommodate employee’s under the American with Disabilities Act (ADA) for claims against employers.
• Workers’ Compensation claims

In Criminal Cases: Since a post-traumatic stress disorder can be classified as a mental condition and in criminal law the mental condition and intension holds a strong area under the term of man’s-area, it may be considered as a criminal defense or a mitigating circumstance. For example, a diagnosis of PTSD can be termed as a basis for the following defenses:

• “Battered woman” or “rape trauma” syndrome
• In partial defense of diminished capacity
• A complete defense of insanity

The legal implications of using PTDS as a defense are immense. Further the courtroom education should include the jury, judge, defense, the prosecution as the primary audience. They should know and they must be aware of and must understand the psychological dynamics of the patient’s behavior.

References

Association, B. (2008, September 8). Law Considers Post Traumatic Stress Disorder. Retrieved from OHIO STATE BAR ASSOCIATION: https://www.ohiobar.org/forpublic/resources/lawyoucanuse/pages/lawyoucanuse-334.aspx

Dagger, R. (2007, April 17). Political Obligation. Retrieved from Stanford Encyclopedia: http://plato.stanford.edu/entries/political-obligation/

Friedman, M. J. (2013). PTSD: National Center for PTSD. Retrieved from U.S. Department of Veterans: http://www.ptsd.va.gov/professional/PTSD-overview/ptsd-overview.asp

JAECK, F. (n.d.). THE GOOD SAMARITAN LAW. Retrieved from Dam Europe: http://www.daneurope.org/c/document_library/get_file?uuid=c09228f3-a745-480b-9549-d9fc8bbbd535&groupId=10103

Jordan, H. W., Howe, G. L., Gelsomino, J., & Lockert, E. W. (1986, February). Post-Traumatic Stress Disorder: A Psychiatric Defense. Retrieved from NCBI: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2571223/?page=7

Kortmann, J. (2001). Liability for Nonfeasance; a comparative study. Germany: Oxford University Comparative Law Forum.

LaMance, K. (2011, January 28). Violation of Probation Lawyers. Retrieved from Legal Match: http://www.legalmatch.com/law-library/article/violation-of-probation-lawyers.html

Trimble, M. (1985). Post-traumatic Stress Disorder: History of a concept. In C. Figley, Trauma and its wake: The study and treatment of Post-Traumatic Stress Disorder. New York: Encyclopedia of Psychology.

What is Post-traumatic Stress Disorder (PTSD)? (2008). Retrieved from National Institutes of Health: http://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml