Liability Intro PDF

COLLEGE OF BUSINESS AND ECONOMICS – UNIVERSITY OF RWANDA DEPARTMENT OF BANKING AND INSURANCE- SCHOOL OF BUSINESS INS 3231 LIABILITY INSURANCE Lecturer: Kephers Usenge Atieno, ACII (UK...

COLLEGE OF BUSINESS AND ECONOMICS – UNIVERSITY OF RWANDA DEPARTMENT OF BANKING AND INSURANCE- SCHOOL OF BUSINESS INS 3231 LIABILITY INSURANCE Lecturer: Kephers Usenge Atieno, ACII (UK), Chartered Insurance Practitioner (UK) Email: [email protected] Tel: 0788847079 10/15/2024 1  SOURCES OF LIABILITY ENGLISH LAW IS THE RESULT OF THE COMBINATION OF SEVERAL INDEPENDENT SOURCES OF LAW, THE THREE MAIN HISTORICAL SOURCES BEING COMMON LAW EQUITY LEGISLATION 10/15/2024 2  EQUITY IS IN ONE SENSE, A BRANCH OF THE COMMON LAW SYSTEM (MODERN EQUITY IS THE SYSTEM OF LAW ADMINISTERED IN THE COURT OF CHANCERY) BUT IT HAS LITTLE RELEVANCE TO THE LAW OF TORT, EXCEPT PERHAPS IN RELATION TO THE REMEDY OF INJUCTION. 10/15/2024 3 COMMON LAW IS THE FUNDAMENTAL SOURCE OF THE LAW OF TORTS BUT LEGISLATION IS OF INCREASING IMPORTANCE 10/15/2024 4 WHAT IS COMMON LAW COMMON LAW ORIGINALLY MEANT LAW THAT WAS NOT LOCAL LAW BUT WAS COMMON TO THE COUNTRY AS A WHOLE. NOW THE MEANING IS LAW THAT IS NOT THE RESULT OF LEGISLATION THAT IS, LAW CREATED BY CUSTOM AND BY THE DECISION OF THE COURTS. 10/15/2024 5 LEGISLATION (ACT OF PARLAIMENT) MAY CREATE NEW LIABILITIES, IT MAY ALTER EXISTING LEGISLATION OR AMEND EXISTING COMMON LAW RULES. 10/15/2024 6 IT IS NOT THE FUNCTION OF JUDGES TO MAKE THE LAW BUT TO DECIDE CASES IN ACCORDANCE WITH EXISTING LEGAL RULES. 10/15/2024 7 THIS GIVES RISE TO THE DOCTRINE OF BINDING PRECEDENT WHEREBY THE JUDGE IS REFERRED TO EARLIER DECISIONS FOR GUIDANCE AND IS BOUND TO APPLY THE RULES OF LAW CONTAINED IN THOSE DECISIONS. 10/15/2024 8 A COURT IS BOUND BY DECISIONS OF A COURT ABOVE IT BUT ONE HIGH COURT JUDGE IS NOT BOUND BY THE DECISION OF ANOTHER. THE SYSTEM HAS FLEXIBILITY, FOR SUPERIOR COURTS HAVE POWER TO OVERRULE DECISIONS OF INFERIOR COURTS ( AND IN CERTAIN CASES TO OVERRULE THEIR OWN DECISIONS). 10/15/2024 9 THE SHEER VOLUME OF REPORTED CASES OFFERS SOLUTIONS TO A WIDE VARIETY OF DIFFERING SITUATIONS IN EVERY BRANCH OF THE LAW. 10/15/2024 10  RIGHTS TO COMPENSATION A PERSON WHO SUFFERS BODILY INJURY, DEATH, LOSS OR DAMAGE TO HIS PROPERTY OR REPUTATION, AND / OR FINANCIAL LOSS HAS NO AUTOMATIC RIGHT TO OBTAIN COMPENSATION. 10/15/2024 11 TO SUCCEED A PLAINTIFF MUST BRING HIS CLAIM UNDER ONE OR MORE OF THE WELL – DEFINED AREAS OF THE CIVIL LAW. LIABIITY MAY ARISE EITHER FROM TORT OR BREACH OF CONTRACT (INCLUDING LEGISLATION) 10/15/2024 12 A CAUSE OF ACTION IS NOT ITSELF A CLAIM BUT THE NECESSARY VEHICLE FOR ITS LEGAL ENFORCEMENT. 10/15/2024 13  TORT THE LAW OF TORT IS PART OF THE COMMON LAW OF THE REAM AS MODIFIED BY CERTAIN STATUTES. TORT ALWAYS IMPLIES SOME BREACH OF DUTY – USUALLY THE GENERAL DUTY WHICH LIES ON ALL TO TAKE CARE THAT INJURY OR DAMAGE IS NOT CAUSED TO OTHER PEOPLE. 10/15/2024 14 IT IS A CIVIL WRONG FOR WHICH AN ACTION FOR DAMAGES CAN BE SUSTAINED. IT IS INDEPENDENT OF ANY CONTRACT, THAT IS THE RIGHT TO TAKE ACTION ARISES INDEPENDENTLY OF ANY AGREEMENT WHICH MAY HAVE BEEN ENTERED INTO. 10/15/2024 15 THE DISTINCTION BETWEEN CRIMES AND CIVIL WRONGS DEPENDS NOT ON WHAT IS DONE BUT ON THE LEGAL CONSEQUENCES THAT FOLLOW. 10/15/2024 16 SOME ACTS MAY RESULT IN BOTH CRIMINAL AND CIVIL PROCEEDINGS. TORT MAY TAKE THE FORM OF NEGLIGENCE, NUISANCE, ABSOLUTE OR STRICT LIABILITY, TRESPASS, OR  DEFAMATION. 10/15/2024 17 IN ADDITION LIABILITY MAY ARISE FROM BREACH OF STATUTORY DUTY AND THIS IS NORMALLY TREATED AS BEING PART OF THE GENERAL LAW OF TORT. 10/15/2024 18 STATUTORY LIABILITY CAN ALSO ARISE IN CONTRACT. STATUTORY LIABILITY HERE CAN BE ‘STRICT’ IN THAT IT CAN ARISE IN SOME CIRCUMSTANCES WHERE THE CONDUCT OF THE WRONGDOER IS NEITHER INTENTIONAL NOR NEGLIGENT, e.g. THE FACTORIES ACT 1961 AND THE SALE OF GOODS ACT 1979. 10/15/2024 19 THE BASIC DISTINTION BETWEEN BREACH OF CONTRACT AND TORT IS THAT BREACH OF CONTRACT IS A VIOLATION OF A RIGHT CREATED BY AN AGREEMENT OR PROMISE (MORMALLY VOLUNTARILY ASSUMED), 10/15/2024 20 WHEREAS A TORT IS A BREACH OF DUTY, WHICH A PERSON OWES TO HIS FELLOW MEN IN GENERAL, TO REGULATE HIS ACTIONS IN ORDER THAT HE SHOULD NOT CAUSE INJURY TO THEM OR DAMAGE TO THEIR PROPERTY. 10/15/2024 21 BREACH OF CONTRACT IS NORMALLY A LESS FREQUENT CAUSE OF CLAIMS THAN TORT SINCE IT IS CONFINED TO THOSE CASES WHERE A CONTRACTUAL LIABILITY EXISTS, EITHER EXPRESS OR IMPLIED, AS, FOR EXAMPLE, IN THE SALE OF GOODS (THAT THE GOODS ARE WHAT THEY ARE REPRESENTED TO BE), THE CARRIAGE OF PASSENGERS OR GOODS AND PROPERTY OWNERS’ LIABILITIES. 10/15/2024 22 NORMALLY AN ACTION CAN BE BROUGHT ONLY BY THE AGGREIVED PARTY AGAINST THE OTHER PARTY OR PARTIES TO THE AGREEMENT. A PERSON WHO IS NOT A PARTY TO A CONTRACT CANNOT CLAIM ANY BENEFIT THEREUNDER. 10/15/2024 23 IN SOME CIRCUMSTANCES THERE IS A CLAIM BOTH IN TORT AND IN CONTRACT. FOR EXAMPLE, A PROFESSIONAL PERSON MAY ALSO OWE DUTIES TO HIS CLIENT BOTH UNDER CONTRACT AND IN TORT. 10/15/2024 24 ANOTHER EXAMPLE IS A RAILWAY PASSENGER WHO SUSTAINS INJURIES IN A COLLISION. IF THE ACTION FOR DAMAGES IS FOUNDED ON A BREACH OF SOME PARTICULAR TERM OF THE CONTRACT, IT IS AN ACTION IN CONTRACT, BUT IF THE ACTION IS BASED ON AN ALLEGATION OF NEGLIGENCE ON THE PART OF THE RAILWAY, IT IS AN ACTION IN TORT. 10/15/2024 25 RIGHTS IN CONTRACT MAY BE EITHER GREATER OR LESS THAN IN TORT – THEY ARE NOT NECESSARILY THE SAME. THUS ALTHOUGH A CLAIM MAY BE FOUNDED IN BOTH TORT AND CONTRACT, THE CLAIM MAY SUCCEED IN ONE AND FAIL IN THE OTHER. 10/15/2024 26