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Case analysis and problem solving
Case analysis and problem solving
Case based approach
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To: Senior lawyer From: Yu Tang Assistant lawyer RE: Peter’s disability by external factors Date: March 5, 2016 QUESTION PRESENTED The plaintiff party is Peter who has disability when he was born. The defendant parties is ACME Corporation and his mother May. There are two factors could cause Peter’s disability, one is the ACME Corp emitted toxic chemicals into environment near the park that May often visited when she was pregnant. The other factor is that his mother May was smoking during pregnant. Could Peter get recover compensatory damages with those two situations? SHORT ANSWER Two situations should be discussed independently. First discuss the scenario 1: can Peter (plaintiff) get recover compensatory damages if the evidence prove that …show more content…
In terms of reasonable foreseeability, May owes Peter a duty of care as well. By the way, there is no difference between two situations in terms of reasonable foreseeability. As a pregnant woman, May should know the risk if she is still smoking during pregnant. However, liability cannot be imposed on May if Peter’s disability is caused by her decision. Because in the case Dobson v Dobson (1999) “ the Supreme Court of Canada faced for the first time the question whether a child can sue his or her mother for injuries sustained due to the mother’s prenatal negligence. For many Canadian legal scholars and lawyers, the Court’s decision—that a pregnant woman has no legal duty toward her fetus—came as a surprise. A child is free to sue a third party for damages sustained as a result of the third party’s prenatal negligence, and a child is free to sue either or both of his or her parents for their negligence”(Nelson, E. 1999). It means a duty of care may be owed toward a child who is subsequently born with a disability by anyone in the world except his mother. LIKELY OUTCOME Based on the May’s defences (which would like to refer to Dobson case), the Court would not assign liability to May, which means May is successful in this lawsuit. The law of Tort only do not apply to a pregnant woman. There is a difference between pregnant woman and the third
Damages in the United States include two categories. Compensatory damages are intended to compensate for the plaintiff’s loss. Punitive damages, on the contrary, are meant to punish the defendant .The punitive damages exceed the plaintiff’s loss, to dissuade the defendant from any further wrongdoings. For instance, having a company pay significant punitive damages may encourage it to greater caution. Another difference between the two categories is the money involved. If the damages are compensatory, the money usually goes entirely to the plaintiff, but if they are punitive, part of the money goes to the law firm and part to the plaintiff.
Under California Law, should Charles and Paddy’s be held liable by the court for negligence and award Dennis with compensation when the incident occurred as a result of Dennis’ and Charlie’s destruction of the property, Charles owed no duty to Dennis, Dennis knew the foreseeable risk just as well as Charles, and Paddy’s had posted warnings for the damages that caused the incident in question?
who used cigarettes and alcohol while pregnant and kids who are exposed to high levels of
The plaintiff is due a form of repayment/compensation as stated within the case, due to the negligence presented by Silverline construction ltd. Emma suffered serious facial injuries and concussion and could not carry out her work for 6 months. The case of Lord Atkin in Donoghue v Stevenson [1932] AC562 ‘’you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?’’ this effectively means that Silverline construction ltd. should have foreseen the possibility of there being a failure in the buildings construction taking into consideration the residence within the parameter of the site. I have simply stated the basis that Emma is owed a duty of care due to their negligence.
Explain and analyse the common law tests used by the judiciary to determine liability under the tort of negligence for the following two types of injury claim:
In this assignment my aim is to research on medical and social models of disability, by explaining what they are and the importance of the two models. I will talk about my personal opinions, and evaluate my finding.
The purpose of this essay is to draw on the idea of disability by exploring how the social construction of self and other might impact geographies of inclusion and exclusion. The idea is that social constructionism is a product of men and was created by society as a whole, rather than by individuals, and disability, along with the other concepts such as race and gender, were no longer viewed to be biologically determined (Berger & Luckmann 1966). In order to illustrate this issue, the essay will be broken down into three parts, with each part addressing a different topic in relations to disability. The first part will show what society considers to be a disability, and the expectations of society, which includes the different models that has
The National Council on Disability developed ten recommendations to address civil right protection in mental health disabilities. These recommendations address civil rights for people with mental disabilities and promote equal opportunity, self-sufficiency, and integration of disabled person. The first one I picked out of the ten recommendations from the National Council on Disability is where federal, state, and local governments, including education, healthcare, social services, juvenile justice, and civil rights enforcement agencies, must work together to reduce the placement of children and young adults with disabilities, particularly those labeled seriously emotionally disturbed, in correctional facilities and other segregated settings.
The Responsibility for Accident case is about an argument between an employee, called John Schmidt, and his employer. The dispute occurred when John seriously injured his hand when operating a machine in the production shop and neither John nor the company
It could be said that in modern industrial society, Disability is still widely regarded as tragic individual failing, in which its “victims” require care, sympathy and medical diagnosis. Whilst medical science has served to improve and enhance the quality of life for many it could be argued that it has also led to further segregation and separation of many individuals. This could be caused by its insistence on labelling one as “sick”, “abnormal” or “mental”. Consequently, what this act of labelling and diagnosing has done, is enforce the societal view that a disability is an abnormality that requires treatment and that any of its “victims” should do what is required to be able to function in society as an able bodied individual.
Stauffer Incorporated, the Plaintiff had a similar claim to Ms. Lawson in that she was certain that she was fired in a discriminatory manner which was the result of disparate treatment, alleging violating of PDA, ADA, and FMLA. (GUDENKAUF, v. STAUFFER COMMUNICATIONS, 1996) A significant distinction is that the employee was fired for work performance whereas Ms. Lawson was simply laid off in a company restructuring. The court found in this case that the employer was within its right to evaluate the defendant’s performance at work without regard to her pregnant status, consistent with the PDA, and to deny the claims for ADA and FMLA. (GUDENKAUF, v. STAUFFER COMMUNICATIONS, 1996) Unpaid, job-protected leave was not required because the defendant could not provide substantial evidence to support the claim under ADA that she was incapacitated by her pregnancy which would have permitted unpaid leave under FMLA. For that reason, the employer was granted summary judgment. (Wiley-Blackwell, 2001) Since Ms. Lawson was laid off, FMLA and ADA protections would not apply.
The contradiction in cultural mindsets of persons with disabilities challenges us to introspectively examine our personal response to divergence. In the emerging paradigm of an inclusive society, we are confronted with 'ugliness' that pierces our own perfection bubbles created by the media. We are threatened to engage our own sense of imperfection, shattering our protective shield. We become aware that we are all an accident or illness away from a restricted dance through life. We are blinded by the norms that restrict us. What would it take to see?
My first experience with a person with a disability was my nephew, Ethan. He has Autism and was diagnosed around the age of two. When I think back to what I first noticed about him was that he never spoke and he never wanted to make eye contact with you. My mom and sister were the ones who mentioned to my brother and his wife that something seemed off about their son. Of course, my brother was in denial saying he was just taking longer to develop but my mom was persistent and made him get Ethan tested.
Learning from people with disabilities through Kiwanis camp gave me an extensive knowledge of various disabilities and a growth of my understanding. During the two weeks of camp I learned to be open and be able to express my own feelings regarding disability. I am very surprised and happy how there is a small portion of the population who recognize disability and do not have a stigma. I believe that people’s opinion does matter and have an impact on health of people with disabilities. For example, I had depression and seeked counselling in the United States, which is so normal here. But, in India if you were to tell someone that you are depressed than they would use the ‘r’ word and would still continue to consider you not normal even if you recover from depression. One reason that I was able to recover from depression within a short span of time was because of the ample support and resources that this country provides.
Damages – if the other party cause’s drastic damages that cost the other party or affect it negatively than the other party can sue and take them to court of law, and the court may claim that the affected party may be paid and be taken back to its original position as it was