The Scalera V Non-Marine Underwriters, Lloyd’s of London (2000) was a case held in the Supreme Court of Canada, which created great public interest due to the different perspectives of minority and majority judges involved in the case. The case itself revolves around an insurance policy and exclusion clauses, however the underlying legal policies, principles and rules are the main interest of the judges and affect their reasoning in regards to where the onus of proof lies in relation to consent between the plaintiff and the defendant. In her respective judgement, McLachlin J states in the case report that ‘The traditional rule, as noted, is that the plaintiff in an action for trespass to the person (which includes battery) succeeds if she can prove direct interference with her person.’ …show more content…
This includes the principle of physical integrity as present in the case Collins v Wilcock (1984) and the principle of and personal autonomy as mentioned in paragraph 10 of Scalera v Non-marine underwriters, Lloyd’s of London (2000) . It is stated by Goff L.J. in Collins v Wilcock that “the fundamental principle, plain and incontestable, is that every person’s body is inviolate” . This principle is supported by the ideology of personal autonomy, as mentioned by McLachlin C.J in Scalera v Non-marine Underwriters, Lloyd’s of London (2000) . In his judgement, Iacobucci J noted that “not all intentional touchings are presumptively instances of battery”. Iacobucci J used Mandel v The Permanent (1985) as an example to show that the context of a situation must be viewed to fully understand the extent of the consent involved. It was noted in Mandel v The Permanent (1985) that “a man’s placing of his hand on the plaintiff’s arm to guide her to the door was ‘merely a polite gesture and an accepted usage in daily life in a civilised, whether or not she was consenting to
The case of Kamloops v. Nielson was a landmark decision for tort law, since it established the duty of care principle in Canadian private law, which prior to this case was used in the Anns v. Merton case and expanded the scope of duty first identified in Donoghue v. Stevenson. In the historic case of Donoghue v. Stevenson, duty of care was established to include anyone that could be foreseeably harmed by someone’s actions, creating the neighbour principle. The Anns v. Merton case expanded the scope of the neighbour principle to including public bodies, such as the municipality. The case involved a faulty building foundation, which resulting in requiring repairs for the house, and whether the municipality should have to pay for the repairs, since it was the job of the municipality to inspect and ensure the building was properly constructed. Whether public tax allocations should be subject to tort litigations was placed in question in the case but the municipality was held liable for damages nevertheless.
Godiner v. Moran, p. 78. (1993) The 'Standard' of the Supreme Court of the United States. United States v. Sell, 343 F.3d 950, 2003 U.S. Appl. No. 89/0, LEXIS 26859 (8th Cir., Sept. 2, 2003).
As instructed in the outline for this assignment, I have read and analysed the case of R. v. Keegstra. I have understood the allegations placed and the defence of the same. Also, I have answered the questions provided explaining the rights at stake, the procedure that court adopted to reach to a final decision and that whether or not it was able to reach a balance between the individual and the group rights.
"Schenck v. United States. Baer v. Same.." LII. Cornell University Law school, n.d. Web. 6 Jan. 2014. .
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
SHELLEY v. KRAEMER. The Oyez Project at IIT Chicago-Kent College of Law. 23 March 2014. .
[8] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co. of Australia Ltd (1919) 26 CLR 110
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
This concludes my summary of lessons gleaned from the course BSL 301 Legal Research, Writing, and Analysis referencing Honigberg, G. "Gilbert Law Summaries: Legal Research, Writing, and Analysis" 10th ed. BarBri Group, 2006.
Nicole stepped on Caroline mistakenly, which was an unlawful touching. According to Elliott and Quinn there are three elements to this intentional tort; force, direct application and intent which is so in this case. However, according to Croom-Johnson LJ in the case of Wilson v Pringle “the first distinction between two causes of action where there is personal injury is the element of contact between the claimant and the defendant; that is touching of sort. In the action of negligence, the physical contact (where it takes place at all) is normally through by no means always unintended” . In the action of trespass to constitute battery, it is deliberate. Even so, it is not very intended contact, which is tortious. Apart from in acting in self-defence), there are many examples in everyday life where an i...
suddenly jumps in front of her and drags her into an alley. The attacker strikes (A) and rips her clothes. Fortunately, (A) hits the attacker with a rock and runs to safety. The man’s actions do not amount to assault, they amount to a battery as he dragged the woman to an alley, stroke her, and ripped her clothes off with the intent of causing her harm. The acts of the woman are a measure of self-defense, and she cannot be held accountable for the infliction she may have induced to the man. If the man just followed her without having any physical contact with her, his actions would have constituted to assault, as he would inflict fear into the
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...