ABSOLUTE LIABILTY TO DUTY OF REASONABLE CARE: EVOLUTION OF THE LIABILITY OF BAILEE IN COMMON LAW
In early days, liability in bailment was absolute. The bailee, having been given the position of owner with regard to third parties, was liable to the bailor, and liability in those days meant strict liability. It was no excuse for the bailee to say that the damage or the failure to return was due to no fault of his own; he was liable in any case. The bailee had to safeguard the goods under all circumstances except against Act of God and enemies of the King. In Southcott v. Bennet , popularly referred to as The Southcote 's case and spoken of as 'the high water mark of the theory of absolute liability ' , where goods were delivered to a bailee
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Viscount Hertford, this stance(of imposing absolute liability on all bailees) was softened and Pemberton C.J. refused to apply the rule in Southcote 's case to a gratuitous bailee. It was laid down that "if money be given to one to keep generally without consideration and if the person be robbed, he is discharged".
Later on in Coggs v. Bernard , Lord Hold further reduced the scope of absolute liability by restricting it to those bailees who exercised a public calling. In this much celebrated case, a distinction was made been a gratuitous bailee and a bailee for reward(consideration). From the latter a reasonable duty of care was expected. Gratuitous bailees were liable only upon gross negligence. Subsequently in 1782, Lord Mansfield in Forward v. Pittard , further limited the absolute liability of bailee to common carriers alone, saying that a carriers is in nature of an insurer without the latter 's
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Section 152 adds that in absence of a 'special contract ' the bailee would not be liable for loss or damage to goods provided that he has taken the amount of prescribed in Section 151.
Section 151 lays down a uniform standard of care for all cases of bailment. Thus even gratuitous or involuntary bailees are bound to perform their duties with the same amount of care and diligence. Moreover the standard of care expected from the bailee under this section is that of an average prudent man in respect of his own goods of same quality, bulk and value. Thus, the extent of reasonable care and diligence would depend upon the facts of each case. For example where goods on a ship were lost due to heavy weather on high seas, the bailee was held to be liable as the weather, though unusual, was not unforeseeable and also in addition the goods were not properly stowed thus contributing to the damage. In Shanti Lal v. Tara Chand Madan Gopal, where the bailor 's goods were lost due to floods, the Allahabad High Court said that "...no cast iron standard can be laid down for the measure
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
Mamo v Surace (“Mamo”) examines fault and finality, in the context of an unavoidable accident. Definitional discussion emerges within the idea of “fault”, with the outcomes ultimately furthering the legal avenues of victims of blameless accidents, enabled by the separation of non-tortious negligence and “fault”. Notably, the dismissal of arguments raised at appeal furthers the notion that circumstantially, injustice must be endured for the sake of finality, to avoid greater an injustice inflicted upon the opposing counsel .
In conclusion, Fletcher’s paradigm provides another way to look at liability. In this paradigm, he is more concerned with the case itself than if it brings social utility. Fletcher also looks at the actions and risks that both parties pose on one another and uses this to determine liability.
The principle of bail is basic to our system of justice and its practice as old as English law itself. When the administration of criminal justice was in its infancy, arrest for serious crime meant imprisonment without preliminary hearing and long periods of time could occur between apprehension and the arrival of the King's Justices to hold court. It was therefore a matter of utmost importance to a person under arrest to be able to obtain a provisional release from custody until his case was called. This was also the desideratum of the medieval sheriff, the representative of the Crown in criminal matters,
Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710. In this case a
There are legislative or statutory laws that extend conditional rights to defendants to be released on bail, as well as constitutional safeguards to these rights that the bail shall not be excessive. This is a universally and formally acclaimed due process right, which evokes presumption of innocence and humanitarian consideration. Hence, bail shall be viewed not only as a matter of legal rights but also as an ethical issue. It is an issue of justice,
granting of bail is governed by the Bail Act 1976 and the Bail (Amendment) Act 1993.
In society, as we can not presume one’s innocence, we can not also presume that all judges apply black letter law, and there are no judges who are bias, or whose beliefs and morals ever come into play when ruling on a case. This reform, allows for the opportunity for judges to misconstrue the evidence being given or the seriousness of the offence, as under the Unacceptable Risk Test, one of the indicators were whether they a serious offence has been committed. Rather than setting measurable criteria, like either a summary or indictable offence, the term summary, as stated in the formal review of the Act, that there is “limited guidance in the Act on what constitutes a serious offence” (Hatzistergos, 2014). Therefore leaving judges to interpret and potentially misconstrue, the seriousness of a crime, and creating precedent for all other cases, which could be not what the original legislation intended.
Defendants cannot take an excuse in negligence cases that they did not have the requisite skill or knowledge which would have allowed them to take more care, as also explained in the maxim imperitia non exculpatur. The question that arises is that what should be the standard of care that is expected from the defendants. In the majority of cases, the answer to the question is the objective standard of care because the courts usually apply the objective
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
There is a strict distinction between acts and omissions in tort of negligence. “A person is often not bound to take positive action unless they have agreed to do so, and have been paid for doing so.” (Cane.2009; 73) The rule is a settled one and allows some exceptions only in extreme circumstances. The core idea can be summarized in “why pick on me” argument. This attitude was spectacularly demonstrated in a notoriously known psychological experiment “The Bystander effect” (Latané & Darley. 1968; 377-383). Through practical scenarios, psychologists have found that bystanders are more reluctant to intervene in emergency situations as the size of the group increases. Such acts of omission are hardly justifiable in moral sense, but find some legal support. “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” (L Esher Lievre v Gould [1893] 1 Q.B. 497) Definitely, when there is no sufficient proximity between the parties, a legal duty to take care cannot be lawfully exonerated and imposed, as illustrated in Palmer v Tees Health Authority [1999] All ER (D) 722). If it could, individuals would have been in the permanent state of over- responsibility for others, neglecting their own needs. Policy considerations in omission cases are not inspired by the parable of Good Samaritan ideas. Judges do favour individualism as it “permits the avoidance of vulnerability and requires self-sufficiency. “ (Hoffmaster.2006; 36)
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...