This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.
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Chapter
12. Breach of statutory duty
Chapter
31. Character merchandising
Character merchandising does not have much in the way of specific recognition in UK law. In response, the character merchandising industry has sought legal protection via the adaptation of other intellectual property rights and their application to the merchandising field. This chapter discusses how copyright, trade mark law, and various torts combine to confer legal protection on character merchandising.
Chapter
1. Introduction
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment, and restitution. It also explains the wider range of situations covered by the law of contract, and puts the law of contract into its social and economic context.
Chapter
20. Liability of Public Authorities
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the liability of public authorities. Topics covered include categories of liability; liability for breach of human rights; liability for the tort of negligence; strict liability; breach of statutory duty; misfeasance in public office; statement of general principles of liability; immunities and time limits for actions in tort; liability in contract; liability to make restitution; and liability to pay compensation where there has been no tort or breach of contract.
Chapter
12. Breach of statutory duty
This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.
Chapter
28. Tortious protection of intellectual property rights
This chapter discusses the ways in which the common law, in the form of the law of tort, creates rights of action. It focuses on the torts of passing off and malicious falsehood, although attention is also paid to the ways in which defamation can assist. These rights are supplementary, and complementary, to the statutory formal rights. In particular, trade mark law and passing off closely overlap, although s. 2(2) of the Trade Marks Act 1994 preserves passing off as a separate cause of action.
Chapter
17. Actions under Rylands v Fletcher
This chapter first looks at the idea of there being a form of strict liability for the escape of things brought onto and kept on land, arising from the case of Rylands v Fletcher. It continues by looking at the concept of ‘adopting a nuisance’; that is, allowing a nuisance on land to continue or failing to remove a natural hazard on land that ought to have been removed or been attended to, for example in order to prevent a one-off escape. Cases in this area have led to the existence of a ‘measured duty of care’, seemingly bringing the land torts closer to negligence.
Chapter
18. Vicarious liability
Vicarious liability is a system whereby an employer is liable for the torts of his employees committed in the course of employment. The principle of placing liability on the employer as well as upon the individual tortfeasor is mainly justified by the concept of loss distribution; that is, that the employer will usually be better able to distribute the loss, either through insurance or through his customers. This chapter begins with a definition of an employee. It then discusses the liability of the employee; how an employer is liable for the torts of his employee only if the act is committed ‘in the course of his employment‘; and liability for independent contractors.
Chapter
2. Duty of care: basic principles
This chapter sets out the basic principles of negligence. Duty is one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act. Duty is about relationships, and it must be shown that the particular defendant stood in the required relationship to the claimant such that he came under an obligation to use care towards him. This relationship is sometimes referred to as ‘proximity’. The chapter presents cases to illustrate the meaning of proximity. It also discusses the unforeseeable claimant problem and policy factors.
Chapter
7. Breach of duty: the standard of care
Once it has been established that there is a sufficient relationship between the parties to establish a duty, the question then arises whether the defendant has been in breach of this duty. This involves a number of issues, many of which involve the judgment of the ‘reasonable man’. The defendant’s behaviour must have fallen below the level of the standard of care owed, which defines the level of safety a claimant is entitled to expect. The ‘reasonable man’ may give the impression of certainty where there is none, for whether it is reasonable to take a certain risk involves questions of economic and social policy which are rarely expressed in the law reports.
Chapter
13. Intentional interferences with the person
This chapter considers intentional interferences with the person, including the so-called trespass to the person torts, the tort in Wilkinson v Downton and the Protection from Harassment Act 1997. Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a claimant’s interest in his person, his land or his goods. It is the right itself which is protected, and not just the freedom from resulting damage, and much of the law of trespass is the basis of civil liberties today. This chapter considers the torts of assault, battery and false imprisonment, together with various defences. The principal use today of these torts relates not so much to recovery of compensation but to the establishment of a right, or a recognition that the defendant acted unlawfully. The chapter then considers the tort in Wilkinson v Downton which provides a remedy in cases of indirect intentional infliction of distress and the statutory tort of harassment (Protection from Harassment Act 1997).
Chapter
14. Invasion of privacy
This chapter discusses different aspects of privacy. It shows that there is no general common law right to protection from invasion of privacy (the so-called ‘right to be let alone’), but that limitation has been largely subverted by the new law in the second section on the protection of personal information and the reasonable expectation of privacy that has developed significantly in recent years. This shows the potential power of the Human Rights Act 1998 and the European Convention on Human Rights, and is the subject of considerable controversy, especially in relation to the protection of celebrity privacy. The final section considers remedies in privacy cases.
Chapter
7. Breach of duty: the standard of care
Once it has been established that there is a sufficient relationship between the parties to establish a duty, the question then arises whether the defendant has been in breach of this duty. This involves a number of issues, many of which involve the judgement of the ‘reasonable man’. The defendant’s behaviour must have fallen below the level of the standard of care owed, which defines the level of safety a claimant is entitled to expect. The ‘reasonable man’ may give the impression of certainty where there is none, for whether it is reasonable to take a certain risk involves questions of economic and social policy which are rarely expressed in the law reports.
Chapter
11. Private law and environmental protection
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter focuses on the torts—or civil wrongs—traditionally relied on in environmental litigation: private and public nuisance, trespass, negligence, and the rule in Rylands v. Fletcher. It discusses and outlines statutory nuisance and various instances of statutory civil liability, some of which go beyond providing remedies for individuals and provide for wider environmental clean-up. Traditionally, private law has attempted to serve the function of controlling environmental damage. However, the chapter shows that the similarity is often superficial; the essential characteristic of private law is to regulate relationships between individuals by the balancing of individual interests. It concludes by briefly considering the EU Environmental Liability Directive, which has some similarities with private law remedies but is primarily an administrative mechanism for environmental remediation in defined situations.
Chapter
5. Non-contractual obligations
Jonathan Hill
Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.
Chapter
13. Intentional interferences with the person
This chapter considers intentional interferences with the person, including the so-called trespass to the person torts, the tort in Wilkinson v Downton and the Protection from Harassment Act 1997. Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a claimant’s interest in his person, his land or his goods. It is the right itself which is protected, and not just the freedom from resulting damage, and much of the law of trespass is the basis of civil liberties today. This chapter considers the torts of assault, battery and false imprisonment, together with various defences. The principal use today of these torts relates not so much to recovery of compensation but to the establishment of a right, or a recognition that the defendant acted unlawfully. The chapter then considers the tort in Wilkinson v Downton which provides a remedy in cases of indirect intentional infliction of distress and the statutory tort of harassment (Protection from Harassment Act 1997).
Chapter
17. Actions under Rylands v Fletcher
This chapter first looks at the idea of there being a form of strict liability for the escape of things brought onto and kept on land, arising from the case of Rylands v Fletcher. It continues by looking at the concept of ‘adopting a nuisance’; that is, allowing a nuisance on land to continue or failing to remove a natural hazard on land that ought to have been removed or been attended to, for example in order to prevent a one-off escape. Cases in this area have led to the existence of a ‘measured duty of care’, seemingly bringing the land torts closer to negligence.
Chapter
18. Vicarious liability
Vicarious liability is a system whereby an employer is liable for the torts of his employees committed in the course of employment. The principle of placing liability on the employer as well as upon the individual tortfeasor is mainly justified by the concept of loss distribution; that is, that the employer will usually be better able to distribute the loss, either through insurance or through his customers. This chapter begins with a definition of an employee. It then discusses the liability of the employee; how an employer is liable for the torts of his employee only if the act is committed ‘in the course of his employment’; and liability for independent contractors.
Chapter
2. Duty of care: basic principles
This chapter sets out the basic principles of negligence. Duty is one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act. Duty is about relationships, and it must be shown that the particular defendant stood in the required relationship to the claimant such that he came under an obligation to use care towards him. This relationship is sometimes referred to as ‘proximity’. The chapter presents cases to illustrate the meaning of proximity. It also discusses the unforeseeable claimant problem and policy factors.
Chapter
4. Partners and Outsiders
This chapter sets out the vicarious liability of partners for the various forms of partnership liability to third parties. The liability for contracts is based on the concepts of agency and the authority of the partner(s) making the contract, in particular the scope of the implied or usual authority of a partner to bind the other partners. The exception to the undisclosed principal rule is carefully examined. The vicarious liability for torts and crimes committed by a partner is examined, including the apparent paradox of the non-existent legal person of the firm being subject to prosecution. The liability for breaches of equitable liabilities relating to misapplications by a partner is synthesised, including knowing receipt and dishonest assistance in a breach of trust. Then the chapter considers the nature of such liabilities and finally, the effect of a change of partners on such liabilities on both the outgoing and incoming partners.
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