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Negligence – Will The Doors Ever Be Closed?

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There have been a multitude of legal cases which imply that the law of negligence has evolved, developed and widened to include ever increasing sets of circumstances in which the courts have been prepared to find that one party owes another party a duty of care. The question is how far the courts are prepared to extend the duty. Has it reached its limits or will it encroach into other areas of our lives?

The law clearly states that in order to be successful in a negligence claim, the claimant must prove that: 1) the defendant owes him a duty of care, 2) the defendant is in breach of that duty, 3) the breach of duty has caused damage and 4) that the damage was not too remote. It has already become clear, through the wording of the legal requirements for a successful negligence claim, that the doors in this area of law are open to all possibilities. Disputes will always rise on the legal interpretation of the word “remote” and whether a duty of care is actually owed; these decisions ultimately lie in the hands of the courts. Furthermore, the English Courts have put forward varying versions of the legal definition of “negligence” but the fundamental idea is that a person is negligent if he/she fails to do something a reasonable person would have done, or if he does something that a reasonable and prudent person would not have done.

Donoghue v Stevenson (1932)

Donoghue v. Stevenson (1932), also known as the ‘snail in a bottle case’ is a significant case in Western Law. The House of Lords’ ruling in this case established the civil law tort of negligence and obliged manufacturers to observe a duty of care towards their customers. On Sunday 26th August 1928, Donoghue sat in a cafe and ordered some ginger beer, typically served in a bottle made from dark opaque glass, which had been purchased for her by her friend. Donoghue drank some of the contents, followed by her friend who proceeded to pour the remainder of the contents of the bottle into the tumbler, when a rotten snail floated out of the bottle.

As a result of the sickening sight of the snail, and the impurities in the ginger beer, Donoghue suffered from shock and severe inflammation of the stomach and intestines. Subsequently, Donoghue took legal action against Mr David Stevenson, the manufacturer of the ginger beer, lodging a Writ in the Court of Sessions, Scotland’s highest civil court, seeking £500 worth of damages. Donoghue won in what was to be a landmark decision in the law of negligence. Prior to Donoghue v Stevenson, one could not bring an action in negligence but only for breach of contract. If there was no contract, one could not make a claim. This case established the law of negligence and it has continued to grow ever since.

Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964)

Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) was another landmark decision. Prior to this case, if a party made a negligence statement and this was relied upon by another party, that other party had no claim if he suffered financial loss in the absence of a contract. The Houses of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd overruled previous case law and held that one could bring a claim for pure economic loss, arising out of negligence where there was no contractual relationship between the parties.

Hedley Byrne were a firm of advertising agents who wanted to provide their services to a customer known as Easipower Ltd. They asked their bank to get a credit report from Easipower’s bank, Heller and Partners. The bank replied that Easipower was “considered good for its ordinary business engagements”. The contract went ahead but Easipower went into liquidation and Hedley Byrne lost £17,000. Hedley Byrne sued Heller and Partners for negligence, claiming that the information that they supplied was misleading. Heller and Partners argued that there was no duty for care as they had not entered in to a contract with Hedley Byrne. The House of Lords held that a duty for care was owed in these circumstances.

One can see from the above that the law of negligence started in respect of negligent acts done by one party to the other and evolved in to an area of law where a mere statement could result in an action for negligence.

The law of negligence continues to develop and as social attitudes change, the judges appear to be more willing to expand the law of negligence. It seems that when in 1932, Lord Macmillan in the case of Donoghue and Stevenson said “the categories of negligence are never closed”, he could never have known the extent to which he would be proved so right by history.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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