Dissertations / Theses on the topic 'Tortious liability'

In many cases the breach of contract may give rise to delictual liability since the damaging behaviour can be construed as unlawful, especially when an infringement occurs of the other party’s rights in rem or physical injuries are caused to the contract partner as a result of such a breach of the contractual rules. On the other hand, there is no place for delictual liability if the damage results from a breach of a contractual obligation which is part of the consideration. Examples of the relationship and concurrence of delictual (tort) and contractual liability for the breach of contract, legal aspects of interference problem, peculiarities of tort law and contract law, their specific regimes and the areas of possible overlap are analyzed in this work. The issue under consideration is whether a plaintiff who has a contract with the defendant and who can also establish a tort relationship with the defendant may have a choice of remedies in order to gain some advantages with respect to a burden of proof, degree of fault, availability of exceptions, or length of the respective periods of limitation.

This thesis comprises an evaluation of existing and suggested approaches, and promulgation and defence of a preferred approach, to liability for psychiatric injury (or 'nervous shock') resulting from the unintentional conduct of another and occurring independently of any physical injury to the sufferer. Such a claim was first recognised a little over one hundred years ago but since that time the precise limits of liability for psychiatric injury has been an issue that has vexed courts in many jurisdictions. Even today there is no common approach to liability for psychiatric injury in Australia and England. This position is contributed to by the recent divergence in approaches to the determination of the existence of a duty of care in negligence in those countries. The thesis establishes a yardstick which is argued as being reflective of good judicial reasoning, at least as is appropriate to the subject of the enquiry, psychiatric injury. It then lays a foundation for the evaluation by an historical and analytical analysis of liability for psychiatric injury. The historical trace is set in the context of the development of the elements of the cause of action for negligence, including the recent divergence in approaches to duty, while the comparative analysis embraces decisions in Australia, England, Ireland, Scotland, New Zealand, Canada and the United States. In relation to the last mentioned, due to the lack of a federal attribute each state jurisdiction determines its own approach to the equivalent of liability for psychiatric injury, and there is no uniformly accepted response. Against this analysis, the thesis juxtaposes a medical perspective of 'nervous shock'. This perspective facilitates an evaluation of the medical legitimacy of past and current approaches and concepts and informs the promulgation of a preferred approach, including a more refined definition of the damage deemed worthy of compensation. The thesis also analyses the policy factors, or considerations of community welfare external to the interests of the parties to a particular dispute, that have shaped the limits of liability for psychiatric injury, including an assessment of the continued legitimacy of policy factors as measured against the yardstick for good judicial reasoning. It then proceeds to assess against the yardstick the continued legitimacy of individual concepts which have been promoted as being the appropriate limitations of liability. The thesis proceeds to critique the current approaches to duty of care in Australia and England, utilising psychiatric injury as a catalyst and evaluating the approaches against the yardstick. A literature review which critiques alternative approaches that have been suggested then follows. The climax of the thesis is the promulgation of a preferred approach, which draws on the analysis and evaluation throughout the thesis. This preferred approach advocates a more specific definition of the damage deemed worthy of compensation, an accommodation of an overt identification and assessment of relevant policy considerations, an incremental approach to the establishment of duty of care and greater emphasis upon the other elements of the negligence cause of action. This preferred approach is demonstrated as conforming to the yardstick and is accordingly defended as reflective of good judicial reasoning.