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LSN: Other Law & Society: Private Law - Torts (Topic)最新文献

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Reasonable Foreseeability of Harm as an Element of Nuisance 作为妨害要素的损害的合理可预见性
LSN: Other Law & Society: Private Law - Torts (Topic) Pub Date : 2016-09-01 DOI: 10.26686/vuwlr.v47i2.4805
Maria Hook
{"title":"Reasonable Foreseeability of Harm as an Element of Nuisance","authors":"Maria Hook","doi":"10.26686/vuwlr.v47i2.4805","DOIUrl":"https://doi.org/10.26686/vuwlr.v47i2.4805","url":null,"abstract":"A landowner's utility pipe bursts and floods the plaintiff's land. It was reasonably foreseeable that the water would cause flood damage to the plaintiff's land in case of an escape. But it was not reasonably foreseeable that the pipe would burst and, hence, that there would be an escape of water. Can the landowner be liable in nuisance? This paper explores the conceptual implications of the proposition that reasonable foreseeability of harm is an element of liability in nuisance. It argues that, if reasonable foreseeability of harm is an element of nuisance, then nuisance can no longer be thought of as a strict liability tort.","PeriodicalId":151036,"journal":{"name":"LSN: Other Law & Society: Private Law - Torts (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114666060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Tort Law for Cynics 玩世不恭者的侵权法
LSN: Other Law & Society: Private Law - Torts (Topic) Pub Date : 2014-09-01 DOI: 10.1111/1468-2230.12087
Dan Priel
{"title":"Tort Law for Cynics","authors":"Dan Priel","doi":"10.1111/1468-2230.12087","DOIUrl":"https://doi.org/10.1111/1468-2230.12087","url":null,"abstract":"Various tort scholars have in recent years come to the defence of a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this view implies that having a duty of care means that the law considers violating this duty as something that the duty-holder must make an effort not to do. Idealists contrast this view with a ‘cynical’ view according to which having a duty of care implies a legal requirement to pay damages for breach of the duty of care. In this essay I defend the cynical view against its critics. Descriptively, I argue that the cynical view can easily explain doctrines supposedly only explicable from an idealist perspective, and that in fact many aspects of tort law are hard to reconcile with idealism. I argue that various empirical constraints often make idealism, even if it were desirable, unattainable, and in this regard cynicism is a more honest view than idealism. But I further argue that cynicism is not merely a concession to reality, that idealism is often undesirable. Idealists ignore the fact that opting for idealism has costs (both pecuniary and non-pecuniary), and that when those are taken into account, idealism is often normatively unattractive.","PeriodicalId":151036,"journal":{"name":"LSN: Other Law & Society: Private Law - Torts (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125018985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
The New Intrusion Tort: The News Media Exposed? 新入侵侵权:新闻媒体曝光?
LSN: Other Law & Society: Private Law - Torts (Topic) Pub Date : 2014-08-01 DOI: 10.26686/VUWLR.V45I1.4968
T. McKenzie
{"title":"The New Intrusion Tort: The News Media Exposed?","authors":"T. McKenzie","doi":"10.26686/VUWLR.V45I1.4968","DOIUrl":"https://doi.org/10.26686/VUWLR.V45I1.4968","url":null,"abstract":"In C v Holland, Whata J recognised that the tort of intrusion upon seclusion formed part of New Zealand’s common law. The tort protects against intentional intrusions into a person’s private space. This decision potentially exposes the news media to tortious liability when it engages in intrusive newsgathering practices. However, Whata J’s decision provides little guidance as to how the tort should be applied in later cases. In order to ascertain the meaning of the tort’s formulation, this essay draws upon the methods used, both in New Zealand and internationally, to prevent the news media from breaching individual privacy rights. It then suggests that the courts should replace the formulation with a one-step reasonable expectation of privacy test. It also argues that the legitimate public concern defence should be better tailored to the intrusion context. Finally, it briefly assesses how the intrusion tort should interact with the tort in Hosking v Runting. Ultimately, it concludes that, in future, the courts should reflect more carefully on the precise wording of the intrusion tort’s formulation so that it best vindicates the interests that it was designed to protect.","PeriodicalId":151036,"journal":{"name":"LSN: Other Law & Society: Private Law - Torts (Topic)","volume":" 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132094279","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Taxonomy in Private Law — Furor in Text and Subtext 私法分类学——文本与潜台词中的愤怒
LSN: Other Law & Society: Private Law - Torts (Topic) Pub Date : 2013-11-25 DOI: 10.2139/SSRN.2359820
Peter G. Watts
{"title":"Taxonomy in Private Law — Furor in Text and Subtext","authors":"Peter G. Watts","doi":"10.2139/SSRN.2359820","DOIUrl":"https://doi.org/10.2139/SSRN.2359820","url":null,"abstract":"This article starts with an overview of the debates over classification in private law that took place in the latter period of Peter Birks’s career. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of his most prominent critics. The article next turns to a defence of Birks’s project and its aims of promoting rationality, the confinement of discretion, and modesty of function in the common law. The greater part of the article is devoted to showing how, in tort law particularly, New Zealand common law has lost its modesty and is intruding on personal freedoms. Instead of requiring an undertaking before a party becomes liable for nothing more than causing damage to another’s wealth, liability is being imposed from without by fudging the boundaries between contract and tort, and by using as tools nothing much sharper than “justice and fairness”. The final section of the article then turns to criticise, on similar grounds, the concept of unjust enrichment as promoted by Birks himself.","PeriodicalId":151036,"journal":{"name":"LSN: Other Law & Society: Private Law - Torts (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125955214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Balancing the Right to Privacy and Freedom of Expression: Re-evaluating Hosking v Runting in the Light of Recent Developments in English Privacy Law 隐私权与言论自由的平衡:从英国隐私法的新发展再评价“霍斯金诉逃跑”
LSN: Other Law & Society: Private Law - Torts (Topic) Pub Date : 1900-01-01 DOI: 10.26686/wgtn.17012045
A. Ward
{"title":"Balancing the Right to Privacy and Freedom of Expression: Re-evaluating Hosking v Runting in the Light of Recent Developments in English Privacy Law","authors":"A. Ward","doi":"10.26686/wgtn.17012045","DOIUrl":"https://doi.org/10.26686/wgtn.17012045","url":null,"abstract":"This paper examines the potential impact of recent English privacy jurisprudence on the New Zealand tort of privacy. The paper contrasts the New Zealand Court of Appeal’s aversion towards an over-expansive privacy right expressed in Hosking v Runting with an increasing readiness to override freedom of expression in favour of privacy interests in the United Kingdom. Three central conflicts in the courts’ reasoning are addressed in detail, namely privacy’s relationship with public places, individuals with public profiles and mediums of publication. While developments in English privacy law highlight reasoning flaws and theoretical shortcomings in Hosking, the increasing influence European jurisprudence on English law may nevertheless justify some divergence in the two jurisdictions’ balancing of privacy and freedom of expression.","PeriodicalId":151036,"journal":{"name":"LSN: Other Law & Society: Private Law - Torts (Topic)","volume":"311 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122774316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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