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Vicarious liability reflection paper
Case studies of vicarious liability
With the aid of case law, explain vicarious liability
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Vicariouis Liability and Article 21
I take this opportunity to express my gratitude and personal regards
to Mrs. Stelina jolly for inspiring and guiding me during the course
of this project work.
I also owe my sincere thanks to the library staff, National Law
University for the cooperation and facility extended from time to time
during the progress of my project work.
And last but not the least I must give my humblest gratitude to my
parents and my friends for their support and encouragement.
[GOPAL BOSE]
OBJECTIVES AND METHODOLOGY
OBJECTIVES:
1: TO FIND OUT AND STUDY THE RELATIONSHIP BETWEEN THE VICARIOUS
LIABILITY AND ARTICLE 21
2: TO DRAW UP THE BASIC TRENDS BY ANALYSING VARIOUS CASES
METHODOLOGY
THE BASIC METHODOLOGY ADOPTED TO PREPARE THIS RESEARCH IS DEDUCTIVE
THAT IS TO STUDY VARIOUS CASES, TO ANALYSE THE LAWS IN THE SAME TOPIC
AND UNDERSTAND THE GENERAL PRINCIPLE TO DRAW A GENERAL CONCLUSION.
TABLE OF CONTENTS
1:………………………………..INTRODUCTION
2:………………………………..RELATION
3:………………………………..CASE ANALYSIS
4:………………………………..CONCLUSION
5:………………………………..ANNEXURE
6:………………………………..BIBLIOGRAPHY
INTRODUCTION
In India the punishments for crimes has occupied the system than the
compensation for wrong. Therefore the idea of torts has come a bit
late but now it is well established in India.[1]Infact tort is a wide
concept in law and a continuous process. New concepts keep on
indulging in it. The very concept of 'vicarious liability under
article 21' is new one. It is emerging as an indispensable part of
law. Article 21 provides the right to life and personal liberty, in a
very broad sense, and vicarious liability deals with providing the
compensation to injured, by the master for the wrong committed by his
servant. so basically we can say that it is a merging of
constitutional law with law of torts .In order with far reaching
consequences, the Supreme Court of India has extended the scope of
article 21 of the Indian Constitution (protection of life and personal
liberty ) to foreign nationals visiting India.
In the Model Penal Code, section 2.01 discussed are the requirements of voluntary act; Omission as Basis of Liability; and Possesion as an Act. Mainly focusing on the “Voluntary” and “Involunatary” sections, first, stated is that “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. Secondly, stated are acts that are not voluntary wihin the meaning of this section following as, “A reflex or convulsion; a bodily movement during unconsciousness or sleep; conduct during hypnosis or resulting from hypnotic suggestion; and a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.” These requirements correspond with the Latin term “Actus Reus” which is a term used to describe a criminal act. Actus Reus is the wrongful dead that compromises the physical components of a crime. There is a fundamental principle stated in the case textbook that criminal liability always entails an “Actus Reus”, that is, “the commission of some voluntary act that is prohibited by law.”
Mamo v Surace (“Mamo”) examines fault and finality, in the context of an unavoidable accident. Definitional discussion emerges within the idea of “fault”, with the outcomes ultimately furthering the legal avenues of victims of blameless accidents, enabled by the separation of non-tortious negligence and “fault”. Notably, the dismissal of arguments raised at appeal furthers the notion that circumstantially, injustice must be endured for the sake of finality, to avoid greater an injustice inflicted upon the opposing counsel .
A tort is a wrong. More precisely, a tort is a violation of a duty imposed by the civil law. When a person breaks one of those duties and injures another, it is a tort. The injury could be to a person or her property. In a tort case, it is up to the injured party to seek compensation. She must hire her own lawyer, who will file a lawsuit. Her lawyer must convince the court that the defendant breached some legal duty and ought to pay money damages to the plaintiff. A crime is an act so threatening that the government itself will prosecute whether the injured party wants the case to go forward. A district attorney, who is paid by the government, will bring the case to court seeking to send the defendant to prison. If there is a fine,
This article described the horrible events of a CNA who neglected three patients from the age range of 80-95. The CNA allegedly snuck in a bottle of vodka upon arrival of work. She was not drunk when she arrived at work, but drank in the bathroom leaving her patients stranded. While intoxicated the CNA failed to assist with her residents medications. The CNA showed a repulsively small amount of care towards the residents during this shift. She only made it halfway through her shift before she passed out, only waking up to not knowing what had happened. Charges have been made for three counts of neglect.
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Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
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Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that
Part of the grounds for arguing in favor of the common law system over the codified system is its characteristically equitable qualities. Since antecedents are pursued in all cases, everyone gets the same treatment. This same legal procedure is administered to everyone in spite of their position or creed. Therefore, this system of going by antecedents which had hitherto been set usually leads to equity and fairness. This system of law also has the advantage over the codified system by offering protection to persons via the law of tort.
The English Law on Vicarious Liability An employer is responsible for damage caused by the torts of his employees acting in the course of employment. This is known as ‘vicarious liability’[1]. Essentially, vicarious liability is where the employer is generally substituted in terms of liability for the employee, the employee also has liability but the resources of the employer such as insurance makes them more financially attractive to the claimant. The mechanism of vicarious liability is arguably the best compromise between the needs of tort victims and the freedom of businesses as the employer usually has insurance to cover the tort of the employee, making it more financially viable to the employer than directly compensating the claimant.
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In Private International Law, whenever a question of conflicts of law arises, especially in English cases, and a reference is made to a foreign law, doctrine of renvoi comes into play. In this paper, we will have a quick glance on what renvoi means, its kinds, scope, objections, to what extent it is followed in English case law, analysis and finally conclusion.
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