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Suicide is preventable, or is it? The dark truth is that most of us are so self-absorbed that we miss all the signs. A person in my high school committed suicide. I dreaded writing about this for many reasons, mostly rehashing the pain and confusion most of us felt upon learning about it, and perhaps it may be inappropriate as I would be breaching the privacy of the parents and close friends where they are forced to relive that unfortunate event… For the sake of keeping this as private as I can, I’ll name her “X”. I was not friends with X, at least we weren’t close friends. I did not know her in a personal capacity apart from us being in the same science class for 2 consecutive years, in fact, the most you can say is that we were acquaintances. X was known as being a generally happy person, X had many friends and was well liked by her peers. No-one expected X to do this. It was over the weekend, I came back to school the following week and remember hearing it announced that she was in the hospital in critical condition, she subsequently passed away as the harm done wasn’t something that could be repaired. My school dealt with it like any other school would, we were all placed in the library where professionals came in and lectured us on suicide prevention, following which, psychologists came to our school and students who showed signs of distress were forced to meet with them. The school mourned for about two weeks until everyone moved on with their lives and forgot about it. The suicide prevention we were all passionate about went back to being something we made fun of others for. The girl who we knew used to cut her arms continued to hide it, she continued breaking school, sleeping through classes and eventually dropped out- no one has heard from her since; why wasn’t she helped? Why didn’t we do something? Mental disorders affect everyone. According to the North Central Regional Health Authority, 50% of mental disorders develop by the age of 14 and 75% by the age of 24, Ashvini Nath. According to the World Health Organisation statistics, almost one million people die from suicide yearly, a global mortality rate of 16 per 100,000, or one death every 40 seconds. In the last 45 years, suicide rates have increased by 60% worldwide. Suicide is among the three leading causes of death among those aged 15-44 in some countries, and the second leading cause of death in the 10-24 years age group. These figures do not include suicide attempts, which are up to 20 times more frequent than completed suicide. (www.who.int/mental_health) The site also says, “Although traditionally suicide rates have been highest among the male elderly, rates among young people have been increasing to such an extent that they are now the group at highest risk in a third of countries, in both developed and developing countries.” The plead is for us to become more educated, empathetic, compassionate and to abstain from being judgmental. Too often we bash those who have died due to suicide, subjecting their family and friends to uninformed and archaic thoughts and opinions. Here are some common misconceptions about suicide:
Here are some suicide warning signs, per helpguide.org: Talking about suicide – Any talk about suicide, dying, or self-harm, such as “I wish I hadn’t been born,” “If I see you again…” and “I’d be better off dead.” Seeking out lethal means – Seeking access to guns, pills, knives, razor blades or other objects that could be used in a suicide attempt. Preoccupation with death – Unusual focus on death, dying, or violence. Writing poems or stories about death. No hope for the future – Feelings of helplessness, hopelessness, and being trapped (“There’s no way out”). Belief that things will never get better or change. Self-loathing, self-hatred – Feelings of worthlessness, guilt, shame, and self-hatred. Feeling like a burden (“Everyone would be better off without me”). Getting affairs in order – Making out a will. Giving away prized possessions. Making arrangements for family members. Saying goodbye – Unusual or unexpected visits or calls to family and friends. Saying goodbye to people as if they won’t be seen again. Withdrawing from others – Withdrawing from friends and family. Increasing social isolation. Desire to be left alone. Self-destructive behaviour – Increased alcohol or drug use, reckless driving, unsafe sex. Taking unnecessary risks as if they have a “death wish.” Sudden sense of calm – A sudden sense of calm and happiness after being extremely depressed can mean that the person has made a decision to attempt suicide. Risk factors for teenage suicide include:
What can we do? 1. Ask them if they are okay/suicidal Asking someone will not put the idea in their head, sometimes all it takes is initiating the conversation for them to open up to you and be honest about their emotions. 2. Stay and listen Most times, people in those situations simply want a friend who will listen to them. Do not be judgemental, do not give your opinion on how you think they should adjust their life or that they should “just be happy”. Do not make them feel bad for feeling how they feel. Just. Listen. 3. Speak up if you are worried! Do not promise to keep a keep a secret if you know someone is self-harming, in danger, or contemplating suicide. Sometimes speaking to someone and being their friend is not enough, they will need professional help from someone qualified to give it. Sometimes you may be required to contact someone without the suicidal person’s permission. I promise you that ‘temporarily’ losing a friend is more important than losing them forever, they will forgive you for helping! HOTLINES & APPS: You’re Not Alone | Suicide is Preventable- free app on Android and Apple Trinidad and Tobago Suicide Hotline: (868) 645 2800 Trinidad and Tobago Innovative Parenting Support: 664-1520 Rape Crisis Society of Trinidad and Tobago: 657-5355 National Domestic Violence Hotline: 800- 7283 (SAVE) ChildLine: 800-4321 I once read a poem by Fatima Shaikh and it broke my heart, it goes,
“She committed suicide, not by cutting her wrist, or dived to drown, or by hanging her self. But she killed her inner being, her heart, her soul, her dreams, her passion, her desire, because all she wanted was to kill her… but now she is living with more pain than what death causes. So here she is a breathing dead.” The truth is, we don’t need bullshit posts on how to be happy or how to have a great life and how to be confident because the agonizing reality is that the only thing keeping you from feeling or being your best self is YOU. We all do it to ourselves, we all get caught up in our own heads and concoct these ideals of who we are based on our perception of other peoples’ opinions of who we should be; the moment you start comparing yourself to another person, you are already a step closer to falling down the rabbit hole of self-pity, victimization, and the inevitable consequence of antelophobia. Etymologically, antelophobia is the fear of being imperfect. Imagine everything you want in life; all your dreams are anthropomorphised and standing before you in a line but the only thing between you and reaching them is your reflection screaming and echoing your own darkest thoughts of your lack of self-worth. It isn’t touching you, it isn’t pushing you back, it’s just there telling you everything you think about yourself. What do you do? Is this not what we do to ourselves every day? As I analyse Fatima’s poem I’m able to grasp the deeper story within, no, she isn’t Gothic, no, she isn’t literally suicidal, and no, she didn’t mean to ‘kill’ her inner being. Fatima in this poem is crying out for help, all she wanted was to silence the voice in her head, or as I personified it, her reflection that stood before her. So how do we silence that voice? Honestly, I’ve never silenced my inner demons. You have a choice to either let it consume you or you can channel that pain and doubt into motivation, determination and perseverance. You can be crushed by your fears or crush the world with your fears. As a child I struggled with my self-esteem and confidence, I’d be in a room and feel invisible, all this unexplainable anxiety would arise suddenly as I am approached, and I had no idea how to deal with that. For a long time, I distanced myself from others in an effort to shield myself because I genuinely believed I wasn’t worthy, sometimes that was the voice in my head or the voice of others around me constantly reminding me what I already knew. As I grew older I learnt to deal with that on my own through daily positive affirmations; On my work board and walls all around my room I made notes telling myself, “you are good enough, you are beautiful, the gospel proverb- you can do all things, do not let your voice be silenced, I’m proud of you etc.” Eventually my confidence grew; you were able to feel my aura as I walked into a room. But, that didn’t happen over-night. The expectations I had for myself needed to be altered, you have to realize that you can’t be someone who has it all instantly; additionally, I had to stop allowing others’ expectations of what I should be from suffocating me. It all begins with self-examination, growth and awareness; when you know who you are and what you want, there’s nothing that can shake that, but if you don’t prioritize the expectations of what you want now vs what you want in the future you will become easily flustered, you will take on more than you can handle and ultimately self-destruct. Learn to break things up into small tasks and reward yourself as you glide through the timeline of accomplishing your goals. Life is like a ladder, you have to take it one step at a time because if you try to skip steps you may slip and fall to the ground. I learnt to celebrate little accomplishments as much as I celebrated the big ones and in doing so I raised my confidence. We all feel good and happy when we win, we’re all proud of ourselves, use that to further provoke you and thrust you towards bigger and greater things. There are times, however, where you’re not always going to win or succeed instantly; you have to learn how to take a loss like a champ, analyse why you lost, what you could’ve done better and then get back up and try again! Don’t let your losses defeat you. The moment you hold on to it or let it get to your head you will spiral out of control again. You have to condition yourself to look judgement and failure in the eyes and say that you are not giving up and you are going to try again. Conditioning is more than simply how you think but it’s learning how to react and feel when bad things happen. You have to condition yourself to be emotionally intelligent; find a safe space and let it out, but don’t act on your emotions until you are calm and of a sound mind. What really helped me was documenting my trials and frustrations in a journal, it allowed me to get personal with my feelings and be vulnerable without the fear of disclosure. Lastly, you have to accept that antelophobia is not a problem. There is nothing wrong with you because of it. The truth is, trying to silence it or fix yourself is only going to feed and magnify that voice because you are now cognizant that it is a problem. The moment you stop envisioning it as an obstacle but rather yourself crying out for help, or love, or support,- is only then will you defeat that voice. Legal Opinion Question: Mr. Philips, Director of Research at Garco Smix Klaine Ltd (GSK), a leading pharmaceutical company, seeks your advice on the following matter. Senior members of the Research team asked Leo, a young laboratory technician, to carry out experiments on the drug Aulix, a compound well known to be useful in treating lung cancer. The purpose of the experiments was to test the precise quantities of Aulix needed to reduce the spread of cancer. Leo’s employment contract states that his duties include “performing experiments, at the direction of his senior colleagues” and he is expected to work a standard 40 hours per week. While performing the experiments, Leo decided (without having been asked) to test the effectiveness of Aulix in treating leukaemia. He conducted these experiments outside his usual working hours because he was too busy with his large workload. Leo found out that Aulix was also useful in reducing the spread of leukaemia and told his senior colleagues about his discovery. GSK then applied for a UK patent on 1 January 2012, claiming priority from a US Patent filed in February 2011. The UK patent was granted in September 2013. The patent claimed a product, Aulix, “for the use in the manufacture of a drug suitable for treating leukaemia”. GSK has then marketed leukaemia Aulix tablets, the sales of which have been incredibly high. Optima Pharma Ltd, a competitor of GSK, is seeking to challenge the validity of GSK’s patent. They rely on the following: First is an article published in a Russian scientific journal in January 2011 referring to the “yet untested Aulix’s effects to treat a range of different diseases”. Second is an interview given by Leo to BBC 1 in June 2011 in which he says “Aulix has incredible benefits for leukaemia patients”. Third is evidence gathered in 2010 from Mr Bridge, who suffers from leukaemia and was accidentally prescribed Aulix. He said that he “felt much better after taking it”. Advise GSK, according to the Patents Act 1977 UK as to, the validity of their patent; and, making the assumption that there is a valid patent, whether they are entitled to ownership of it. Legal Opinion:
A patent is a right over the commercial exploitation of an invention granted by the state for a period of 20 years in return for detailed public disclosure of an invention. There is no set definition of an invention in statute, however per the Oxford dictionary it is creative ability, a new process or device that is fabricated or made up. Under s1(1) Patents Act 1977 (PA), a product or process patent can only be valid if it possesses novelty, an inventive step, can have industrial application and excluded subject matter under s1(2); s3; s4A; Schedule A2. Regarding the drug ‘Aulix’, which is a product patent, I am instructed to advise Garco Smix Klaine (GSK) according to the PA as to the validity of their patent; and, making the assumption that there is a valid patent, whether they are entitled to ownership of it. Novelty: S2(1) PA states that a patentable invention must be completely ‘new’, therefore it must not form part of the “state of the art”; this is later defined in s2(2) PA as all matter before the priority date which is available to the public anywhere in the world. The priority date (s5 PA) for the patent in the US was in February 2011 and this was claimed for the patent in the UK. This can be applied because the 12 months for claiming a date in a World Trade Organisation country had not passed. (s5(2) PA) An invention should not be ‘anticipated’, therefore, if it forms part of ‘state of the art’ it cannot be patented. As it was seen in (General Tire v Firestone), the prior disclosure should ‘plant a flag’ within the territory of the invention and thus, as we consider the Article published in the Russian Scientific Journal in January 2011- which gave light to the untested Aulix’s effects to treat a range of different diseases, we are unsure of further facts which may imply that said article did, in-fact state that Aulix can treat Leukaemia. Considering the date it was published was prior to the priority date, if the facts of said Journal did ‘plant a flag’ and if the disclosure was enabling (Synthon BV v Smithkline Beecham) meaning that it would in theory advise a person skilled in the art to assess the methodology involved in the creation of the product or process then the patent would fail on the grounds of novelty. Unfortunately, the facts relating to the Article was insufficient, it cannot be said with certainty whether there was an enabling disclosure, consequently, Lord Hoffmann’s two stage test is incomplete. Leo’s interview to BBC in June 2011 was after the priority date, there was no need to remain confidential. Lastly, Mr Bridge took Aulix in 2010 when he was accidently prescribed it for his Leukaemia and felt better after taking it may be similar to the case of (Lux Traffic v Pike Signals). Aulix was being used previously to the priority date as a drug which reduces the spread of cancer, it was already being used in the public domain even though it was patented for a different purpose it was being sold. In the case (Lux) it was held that public demonstration put the invention into the public domain, there was no need the prove anyone saw the disclosure. This can be emphasised in the case of (Merrell Dow Pharma. V HN Norton) where Lord Hoffmann said that if the recipe which inevitably produces the substance is part of the state of the art, so is the substance made by the recipe. At the time of Mr Bridge’s enlightenment, there was no enabling disclosure about Aulix treating specifically Leukaemia, however there was about it being a treatment for general cancer and lung cancer. Leukaemia is a form of cancer, so regardless, it would have been expected at that time that Mr Bridge would have “felt much better after taking it”. As seen in s.4A PA, a new use of a known product can be patented, therefore, Mr. Bridge’s evidence would be inadmissible. It can be concluded that Aulix would most likely not fail on the grounds of novelty, subject to the contents of the Journal Article. Inventive Step: S3 PA states that there must be an inventive step, therefore it must show a technical advance over existing technological understanding which is not obvious. (Biogen v Medeva) We are forced to ask whether it would have been ‘obvious’ to a person skilled in the art at the Priority Date. The test for the inventive step is the Windsurfing/Pozzoli approach to obviousness: 1A. Identify the person skilled in the art: Leo is a young laboratory technician. 1B. Identify the common general knowledge that person would have at the PD: The unimaginative technician may not think to conduct experiments on Aulix to treat Leukaemia. 2. Identify the inventive concept of the product or process: There was no amendment of the product itself, however experiments were conducted using the product to treat Leukaemia. 3. What differences are there between the inventive concept and the state of the art: The inventive concept is using Aulix for treating Leukaemia versus using Aulix for treating lung cancer or other types of general cancer. i.e. a new use for an existing product (Dyson v Hoover; Haberman v Jackal) 4. Without knowledge of the invention do these differences amount to steps that would have been obvious to a person skilled in the art?: The mere fact that the product was not used previous to the Priority date for the purpose it was patented (other than Mr Bridge which was accidental) despite favourable commercial factors, it would suggest that it is not obvious. After the application of the Windsurfing/Pozolli test it can be concluded that the product has an inventive step. Industrial Application: Per s.4 the invention is capable of industrial application if it is capable of being made or used in any kind of industry. This is not an issue; the invention can be applied industrially. Excluded Subject Matter: None of the statutory exceptions apply. Concluding, Aulix is likely to be patentable subject to the issues raised in the novelty examination. Sufficiency: Public disclosure must be obliged, and the patent specification must contain an enabling disclosure so a person skilled in the art would be able to perform said invention after interpreting the claim. (s.14(3) PA) If this isn’t satisfied then you run the risk of revocation. (s.72(1)(c) PA) Issues may arise here due to the claim being drafted widely and does not clearly identify steps which would enable a skilled man to recreate a product (Kirin-Amgen v Hoechst Marion Roussel Ltd) Assuming the patent is valid due to it being granted in September 2013 in the UK, we are to discuss whether GSK is entitled to ownership of said patent. Ownership: S.7 PA states that anyone can apply for ownership, it does not need to be the owner, but the person must be legally entitled. A patent is only granted to the inventor or the successor in title. The inventor is entitled to be named on the patent and must always be a person and not a corporate entity. Therefore, the patent granted to GSK, cannot have GSK named on their patent, rather, the name of the employer (Mr Philips) or the inventor (Leo). Expanding, if an employee invents a product or process during the course of their employment and they are contractually employed by their employer to invent- then the employer owns the developed product or process. (S.39 PA; Decision BL University of Warwick v Dr Geoffrey Graham Diamond) Issues arise because Leo’s contract stated that he was expected to work 40 hours per week to test the specific quantities of Aulix needed to reduce the spread of cancer, not to conduct experiments on Aulix relating to treating of other diseases. Due to a heavy workload he conducted the experiments outside of his usual working hours without the consent of his senior colleagues; he may argue that the invention is his intellectual property and he may be right. An employer would only be able to claim a product or process if it within their jurisdiction within the wording of their contractual agreement. Additionally, if Leo is aware that it was his IP and still gave it to his employer, then S.40 explains that an employer in certain circumstances may be obliged to pay compensation to an employee for their invention. (James Duncan Kelly & Kwok Wai Chiu v GE Healthcare) Finally, patents are only valid up to 20 years post Priority Date, their patent is only 5 years old, so it is still valid. I would advise GSK that it is unlikely they are the owners of the patent and if Leo was to claim ownership he would be successful. However, if Leo willingly gives his re-innovated product to GSK they should offer him sufficient consideration. Lastly, since they are on year 5, they must begin paying renewal fees for their patent. ![]() Pierre Pascatore said, “The purpose of any legal rule is to achieve some practical aim, and it would be running counter to its essential purpose if one handled it in such a way as to render it practically meaningless.”[1] The intended purpose of Direct Effect (DE) allowed individuals to enforce their rights under EU law, however while this may be applicable to Treaties and Regulations; under Directives, bodies can only enforce their rights against the state. This essay seeks to analyse such, critically discussing the enforcement measures used to cover this gap and will ultimately conclude that while these enforcement measures may aid bodies in brining claims alternatively ultimately achieving horizontal direct effect, they are all still flawed and individuals may fall through the gaps of the incoherent legislation. Since 1951, the European Union(EU) has proposed, implemented, discarded, and amended primary and secondary Acts, case law and soft law. The tools of legislation outlined in Article 288 of the Treaty on the Functioning of the European Union(TFEU) are Treaties, Regulations, Directives and Decisions. Other instruments are Recommendations and Opinions. Supremacy and DE aid in the efficacy of the EU. Article 4(3) Treaty of the European Union (TEU) basically states that if the EU tells a member state to do something, they should do it. This has been entrenched through case law with Van Gend En Loos[2] laying the foundation and Costa v ENEL establishing it[3]. Costa states that EU law prevails over any incompatible law of the member states. These cases elucidate the supremacy of EU law because member states would have yielded their sovereignty when they signed the Treaties. The European Court of Justice(ECJ) in Van Gend En Loos implemented Article 25(ext. 12) EC Treaty[4] which creates rights individuals can rely upon against a member state which has failed its obligation to implement an Article; this established the first method of enforcement, Direct effect(DE). DE can be vertically or horizontally applied; vertical effect is between individuals and the state, and horizontal effect is between private parties. Treaty Articles and Regulations present no issue because they are capable of being relied upon against member states and private parties[5] once they are sufficiently clear and precise, and unconditional.[6] The distinction between horizontal and vertical DE is important because it can become problematic when considering directives. Art 288 TFEU states that a directive “shall be binding as to the result to be achieved upon each member state to which it was addressed, but shall leave to the national authorities the choice of form and methods”[7] Van Duyn[8] established that directives can have direct effect, however a directive can only be directly effective if it has not be implemented yet or if the implementation date has passed[9], if it is partially or incorrectly implemented[10] or if it was correctly implemented and the member states did not apply the directive in a way it was meant to be[11]. The rationale behind directives being capable of DE is to prevent the state from being able to get away with its failure to implement a directive.[12] As seen in the case of Marshall v Southampton & S.W Hampshire A.H.A[13], a directive can only have DE vertically, the reasons given by the AG were due to employers not knowing what the directives were because they weren’t published, and because giving a directive horizontal DE could blur the line between regulations which apply to everyone and directives which don’t. In this case the court looked at the addressee rather than the content of the provision, they concluded that hospital was an emanation of the state and not a private body. This was later confirmed in Dori[14]. Over the years many cases attempted to define who is an emanation of the state trying to bridge the gap so more individuals can apply directives via direct effect; Foster v British Gas PLC[15] introduced the bipartite test[16] and the tripartite test[17]. This was a way of minimizing the inflexibility of the lack of horizontal DE of directives. Foster was suing British Gas which was a nationalized industry at that time, the court attempting to explain what a state was applied the tripartite test, this test questioned whether a body was providing a public service under the state’s control and if they had special powers, it is noted that this test does not require all three elements to be proven.[18] Though the Foster test was widely applied though various cases, a lot of controversial issues followed with regards to the interpretation. There were many opposing views on whether the conditions which the test broke down were cumulative or not, and if they were deemed cumulative, which test should be applied. This arose uncertainties about the precise limits of the test, though the ECJ attempted to clarify these in recent cases, it was still limited.[19] Seen in Marshall[20] and Doughty[21] that though they had similar facts, and essentially sought the same remedy via the Equal Treatment Directive, Marshall was permitted due to the employer being part of the state while Doughty failed because they did not meet the 1st and 3rd criteria of the Foster test, despite shares of Rolls Royce being owned by the state- it was still a public company. The Farrell test[22] elucidated the controversy arisen in Foster. This test established that a body is an emanation of the state if it has conferred a task in the public interest and possess by statute special powers. The introduction of this test allowed for further freedom of individuals to bring claims against individuals or bodies(companies), even those governed by private law, who would have had the performance of a task delegated by a member state and not have acted in accordance with directives with regards to the public interest at large. Albert Sanchez-Graells welcomed Farrell as it ‘can potentially catalyse a higher level of effectiveness of secondary EU law’. In my opinion, the Farrell test is endorsed as it provides much lucidity and one which can theoretically yield a higher level of efficacy of secondary EU legislation; however, the issue of ‘what is special powers’ still exists. In Farrell it was clearly distinguished that the special powers were consisted in statutory powers “to require private entities to become members of the entity considered an emanation of the state and to contribute funds for the performance of the task conferred on it by the member state.”[23] In the future, complex issues may arise in the context of ‘contracted out’ public services as it can have a harmful impact on the community by worsening inequality, wage discrimination and possible disciplinary measures by those in the education sector. It is concluded that the Farrell test still has its flaws regardless of the evolution of the law and its attempts to bridge the gaps. The court’s response to this still apparent flaw of directives not being capable of horizontal effect was by establishing numerous exceptions to prohibition allowing individuals the ability to enforce their rights under EU law. Directives can have incidental horizontal DE if they are unimplemented. CIA Security[24] and Unilever Italia[25] stated that unimplemented Directives can be horizontally invoked to disapply inconsistent national law. This response by the ECJ is very complex and puzzling as the unimplemented directive is uncovering an ‘EU law-compliant national law’ that was hidden by contradictory counterparts, instead of creating new national law. Another enforcement measure is by granting horizontal DE of directives ‘through the back door’, this very controversial principle is known as the ‘General Principle of EU law’. In Mangold[26] and Kücükdeveci[27], German law had breached an unimplemented directive which related to age discrimination, this law had to be set aside regardless of the implementation period not yet expiring. The ECJ contended that national courts were under a duty to disapply national laws which were in clear breach of EU law. This method of enforcement is still a mystery as it has only been applied to age discrimination cases, much uncertainly arises as to whether other directives can also achieve said precedent due to EU supremacy. The more common methods of enforcement are Indirect Effect(IE) and state liability(SL). The case of Von Colson[28] gave birth to IE giving courts the ability to apply the purposive approach to national law, that is, courts should interpret national law in line with EU law to achieve what was intended under the EU directive[29], with discretion. This method permitted indirect horizontal effect of directives with Harz[30]; and now turning to Article 4(3) TFEU which obliged them to ‘take appropriate measures’ to attain the result the EU directive intended. Issues arose as to whether IE can apply where national law was not enacted to implement an EU measure. In Marleasing[31] the court ruled that IE can apply to pre-existing national law, and according to para. 8 in the application of national law, the court is required to interpret ‘as far as possible’ to do so with regards to the intended purpose of the directive, Webb[32]confirmed this. Limitations to this method of enforcement could be distinguished when the scope of the discretion permitted by the court was extended in Wagner Miret[33] where Spanish law excluded something directive 879/1980 prevented and questioned how far is as far as possible. It was stated that IE did not apply when national law unambiguously contradicts EU law. Pupino[34] and Kolpinghuis[35] stated that national courts were not required to interpret their national law ‘contra legem’. Accaro[36] noted that IE cannot impose criminal liability because it would be unfair and retroactive. Additionally, Adeneler[37] stated that IE would only be available after the implementation deadline for directives would have passed. In my opinion the implementation of indirect effect, while may aid some individuals, still does not mend the gap. As noted, while the court seemed to right its wrong by formulating IE to aid individuals who wish to bring claims of horizontal DE of directives, many limits were placed on this option and individuals can still fall through the cracks if the purposive interpretation fails due to the directive contradicting with national law, the implementation deadline not passing yet or if an individual sought to aggravate criminal liability. Additionally, IE uses the purposive approach to interpret national law, if there is no national law to be interpreted in accordance to EU law then IE is impossible to accomplish. The court acknowledging the shortcomings of DE and IE established a third method of enforcement, SL. This was introduced so that the state would be liable for not implementing a directive and thus bodies may have the option of recovering damages from a member state if they have suffered loss due to the member state failing to completely satisfy or not achieving the desired result under its requirements in EU law. Francovich[38] was instrumental in establishing this, he worked at a bank (horizontal DE) and wanted to enforce his rights under directive 897/1980 to be paid wages. Horizontal DE of directives and IE was not possible so he was unable to enforce his rights under EU law. Francovich went around this by suing the Italian state, ECJ allowed the case and Italy was liable to pay compensation. The rationale behind this was Article 4(3) TFEU and because it would have undermined the supremacy of EU law. For the state to be liable the directive must grant individuals rights, the content of the rights on the basis of the directive should be identifiable, and there must be a causal link between the breach and damage or loss suffered by the individual/body.[39] However this was expanded in Brasserie[40]/Factortame III[41] where it established that a state was now liable for any breach of EU law by a member state, irrespective of what organ of state was liable- once the directive intended to confer rights, the breach was sufficiently serious and if there was a causal link with the breach and the loss. As seen in the case of Dillenkofer[42], the Francovich and Brasserie tests are both the same in substance so either can be applied. One of the main issues that arises out of SL is the exact definition of sufficiently serious. However, this distinction is based on the facts of each case and dependant on the court’s decision, this was seen in Brasserie[43] which was found to be sufficiently serious due to the member state completely disregarded their discretional limits; while British Telecommunications[44] was found to not be due to the directive being unclear, other member states made a similar interpretation and other reasons. However, in the case of Hedley[45] it was found to be sufficiently serious, it was noted that a breach would automatically be sufficiently serious where the state had no limited discretion as to how it was supposed to act under the EU measure. Nevertheless, if all the above fails a person can bring an enquiry to the Commission who can enforce EU law due to article 258 and 260 TFEU which gave the commission authority to sue member states for breach of EU law (not implementing directives) and the ability of the commission to fine a member state. A member state may also be forced to implement EU law. For a fine to be imposed, the case must be heard before a judge, similarly to criminal law, member states are innocent until proven guilty. This enforcement of fines can act as a deterrent for states to not breach EU law, additionally, articles 278 and 279 states that if a case takes a long time to go to court, these can act as suspending the law as the case goes through. However, these may not seem as appealing remedies to an individual who has been wronged because through this enforcement, an individual cannot claim for damages, only for the implementation of EU law[46]. Furthermore, the commission has all the authority with regards to decisions, they use their discretion whether to proceed to the judicial stage and in the event of a high influx of cases, bigger breaches may take superiority over minor ones due to the commissions’ lack of resources. Consequently, one may opine that the court should reconsider the decision of Horizontal DE of directives as it simply goes against the preconceived purpose of direct effect. It is unconscionable to have individuals face a myriad of complex enforcement measures to assert their rights which were intended under the directive. Ultimately, while the EU has found many alternatives to compensate for their lack of horizontal DE of directives, many individuals can still fall through the cracks as the other enforcement measures implemented are extremely complex, confusing and flawed. While the Farrell test has provided the most elucidation from the labyrinthic routes of the exceptions it is seen that issues regarding contracted out still exists. Emphasising and concluding, the courts should reassess the application of horizontal DE of directives so individuals can safeguard and defend their rights under directives finally accomplishing the intended purpose of the legislation. [1] Pierre Pescatore, The Doctrine of ‘Direct Effect’: An infant Disease of Community Law (1983) 8 EL Rev 155, p. 177. [2] Van Gend En Loos 1963 [3] Costa v ENEL 1964 [4] Van Gend En Loos Article 25(ext. 12) EC Treaty [5] Defrenne (no.2) 197; Antonio Munoz 1999 [please refer to table of cases for full case names] [6] Ibid 8; Azienda Agricola 2001 [7] Art 288 TFEU [8] Van Duyn v Home Office 1974 [9] Pubblico Ministerio v Ratti 1979 [10] VNO 1977 [11] Marks & Spencer PLC 2005 [12] Ratti 1979 [13] Marshall 1999 [14] Dori 1995 [15] Foster v british gas plc 1990 [16] Para.18 [17] Para. 20 [18] NUT v St Mary’s School 1996 [19] Portgás – Sociedade de Produção e Distribuição de Gás SA v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território,(2013) C‑425/12 [20] Marshall 1 1999 [21] Doughty v Rolls Royce 1991 [22] Farrell v Whitty & Others 2017 [23] Ibid C 413/15 [24] CIA Security v Signalson [1996] [25] Unilever Italia v Central Food [2000] [26] Mangold 2005 [27] Kücükdeveci 2010 [28] Von Colson 1984 [29] Art 288 TFEU [30] Dorit Harz v Deutsche Tradax GmbH. 1984 [31] MARLEASING SA V LA COMERCIAL INTERNATIONAL DEALIMENTACION 1990 [32] Webb v EMO Air Cargo (UK) Ltd 1994 [33] Wagner Miret 1993 [34] Pupino 2005 [35] R v KOLPINGHUIS NIJMEGEN 1987 [36]R v LUCIANO ARCARO 1996 [37] Adeneler 2006 [38] Francovich 1991 [39] Ibid 39 [40] Brasserie du Pecheur 1996 [41] Factortame 1996 [42] Dillenkofer 1996 [43] Ibid [44] British Tele 1996 [45] Hedley Lomas 1996 [46] Van Gend En Loos 1963 ![]() Negligence is the breach of an owed duty by means of an act or omission in the prevention of harm that results in damages. This essay seeks to discuss the objective standard of care imposed at the breach stage in general negligence and why the court generally imposes such. It will clearly analyse circumstances where the court was influenced to adopt the subjective standard; ultimately concluding that the approach taken by the court should be amended since it is often based on policy and principle for the benefit of the claimant; it can be said that as opposed to achieving corrective justice the court occasionally elevates the function of tort as a compensation mechanism. Breach occurs if the defendant does something or omits to do something a reasonable man would have done[1]. The court asks two questions when considering whether a breach occurred: theoretically in law, what should the standard of care be, and whether the defendant has fallen below that standard. As seen in Donoghue v Stevenson [1932][2], the standard of care is not a standard of perfection; per Lord Atkin’s statement, the key requirement is that of reasonableness. The reasonable man test was emphasised by Baron Anderson in Blyth v Birmingham Waterworks Co. [1856][3]. Many cases have sought to define the reasonable man over the years, they are ‘the man on the Clapham omnibus’[4], ‘the anthropomorphic conception of justice’[5] and ‘a traveller on the London underground’[6] After many definitions (and debates by feminists), it is agreed that the reasonable man is the hypothetical average person, this person is not all knowing, they occasionally take risks and make mistakes. Realistically, the objective standard is not one of perfection[7]. The test of objectivity begs the question of what the reasonable man would do in such circumstances. This ultimately means that the standard of care is not dependent on the defendant’s personal idiosyncrasies, characteristics, or capabilities[8]; the courts will rarely impose a lower standard. This is illustrated in Nettleship v Weston [1971][9] where a learner driver accompanied by a driving instructor brake too slowing causing the vehicle to collide with a lamp-post. The claimant, consequently suffered a broken knee and sued for damages. It was held that the learner driver owed the standard of a reasonably competent driver. It would be opined that the approach taken by the court is claimant-centred, Lord Justice Salmon stated that any driver normally owes the same standard to a passenger in their car as they do to the public, i.e. the public views anyone driving as a ‘reasonably competent driver’ regardless of their experience, thus, any person should be held at such. Behind the rulings of this case, policy decisions, such as insurance, was also considered. The courts typically impose the reasonable man test because Per Cane (p 49), the ‘objective standard of care is understood as the law’s attempt to strike a fair balance between the competing interests in freedom of action and personal security that we all share’. This approach moved away from the concept that there should be no liability without fault and adopted the question of whom the risk should fall on. This concept was taken to the extreme in Roberts v Ramsbottom [1980][10] regarding the defendant under disability due to suffering a stroke while driving and consequently knocked down a pedestrian. The defendant was liable because he had some degree of control. However, in Mansfield v Weetabix Ltd [1998][11] the defendant was not liable because despite him suffering a hypoglycaemic attack causing him to black out while driving and crashing into the claimant’s shop, he was not aware of his disability. This case is a prime example of the courts ‘modifying’ the objective standard to include certain subjective characteristics of the defendant. Considering this, circumstances the court would apply subjective elements to breach in general negligence are to be examined. Individuals’ expertise may be considered based on facts of each specific case. Occasionally, a person may not be judged as a ‘reasonable average person’ but rather that of a ‘reasonably competent hypnotist-entertainer’[12], a ‘reasonably competent jeweller’[13], a ‘reasonably competent amateur home do-it-yourself’[14] or even an expert. As seen previously[15] trainees are not held at a lower standard by the courts for their actions, it was emphasised in Wilsher v Essex AHA [1988][16] that the act not the actor would be judged. Whereas, professionals assume a test with a combination of objectivity and subjectivity, this is regarded as the ‘Bolam test’[17], it asks what the reasonable man would do as compared to a professional. This test does not necessarily a majority who would’ve acted in that manner but rather if the defendant can find at least one professional in their same field of expertise who would’ve also acted as such. This application of subjectivity is necessary because the courts need to establish whether the act was reasonable and logical.[18] It was decided that concerning the expert opinions a balance was necessary to prove undue deference. Subjectivity regarding children is resoundingly blatant as the courts are aware that children may not have the required capacity to acknowledge the dangers of certain actions or omissions. In the recent case of Orchard v Lee [2009][19], a young boy ran into a dinner lady and managed to injure her. The court compared the action of the child with other children of similar age and experience, concluding that his actions met the standard of a reasonably competent 13-year-old, instead of a reasonably competent ‘adult’. Mullins and Richards [1998] [20]also had a similar ruling, it was held that teenage girls sword fighting with a ruler is usual behaviour of a 15 year-old child. One of the cutting-edge defences used by defendants is that they did not know of the risk at the time of the incident. In Roe v Minister of Health [1954][21] claimants from 1947 became permanently paralysed after being given contaminated anaesthetic with a sterilising fluid for a minor operation. The hospital was unaware that the storage procedure of the anaesthetic had contaminated them and they continued storing it in that manner. In the case Lord Denning said that the doctor was unaware there could be undetectable cracks, … it was not negligent for him not to know it at that time, and that the court should not look at the 1947 accident with 1954 spectacles. Similarly, in Maguire v Harland & Wolff [2005], in the time of cancer when the defendants did not know much about mesothelioma, the same judgement was applied. The court recognised that it would be unfair to hold a defendant liable for something they were not aware of. These cases show a clear example that the objective standard was not achieved; it can be considered that the attempt of the court to distance themselves from the idea that no fault results in no liability was fatal, as this precedent took a spin and is now ‘no knowledge at time of fault equals no liability’. While the defendant would be relieved of liability for being unaware of certain factors at time of incident, a higher standard would be imposed if the claimant is known to have certain disabilities. Both Paris v Stephney BC [1951] [22]and Haley v LEB [1964] [23]the claims were in relation to blindness and they succeeded since defendants should have done something to prevent further injury, or injury towards them. As previously established mentally or physically disabled defendants would only be liable if they were aware of their condition and took the risk anyways. That is, a reasonably competent individual would not have acted in a certain way given their disabilities.[24] A defendant may or may not be liable for the claimant’s injuries due to intoxication. In Griffiths v Brown [1998] [25]a taxi driver was found to be not liable when he ran over a drunk passenger after they got out of the vehicle. Whereas in Brannan v Airtours plc [1999][26] the court decided that if the defendant is responsible for the claimant’s state or if there are elements of contributory negligence then they are liable. In this case Reps. Encouraged the claimant, who was on a package vacation in Greece, to consume a large quantity of alcohol. The claimant got up in a drunken state and walked on a table subsequently seriously injuring himself on a ceiling fan. One of the things the court look for is a link either geographically or relationship wise to determine whether the defendant could have influenced the claimant to consume so much alcohol as to impair their mental stability which results in damage or injury. The courts there examine the actions of the defendant to impose liability. In Watt v Herts County Council [1954] [27]a fireman was injured by equipment packed loosely in a fire truck during an emergency call. It was held that the standard of care expected is much lower if the defendant is responding to an emergency. During emergencies it is understood that the mental capacity of an individual may not be the most sound, the court takes these factors into consideration In sports, the standard is not just of a reasonably competent player but a player who is in compliance with the rules and regulations of the specific sport. In Condon v Basi [1985] [28]a foul during a game of football resulted in a broken leg. The claimant was able to sue because the defendant needed to exercise a degree of care towards other players. Regarding sports, the courts examine the actions of the defendant; this is because liability can not be imposed unless the player acted out of their bound. It can be opined that modern lawyers fail to comprehend what a principled account of the law would be like since the reliance on policies in tort has become ubiquitous. One of the major downfalls of the objective standard is the exclusion of the principled corrective justice. The purpose of corrective justice is to have a defendant compensate the claimant for the damages they caused due to their fault, it does not necessarily dictate that an individual should compensate another for all damages, even those not caused by them. In cases such as Nettleship v Weston where there is no genuine culpability on the part of the defendant, liability should not be imposed. This opens the door to arguments of unequitable outcomes in the law of tort. Considering the morality of the case, the learner driver was not at fault, however since this was a case regarding a car accident, the court identified that she would be liable due her being insured. One of the defences attempted to be introduced by the defendant was ‘volenti non fit injuria’ which means that injury is not done to a willing person. The court also shut down this argument since it was stated that an expressed or written contract was not implemented to support it. Despite these observations above, it can be noted that the approach taken by the court is pragmatic and comprehensive. In cases such as Nettleship which include roadside accidents, the courts ruled where the financial burden fell neither on the defendant nor the claimant, but rather the insurance company. Thus, introducing the implementation of policy as a measure of compensation, has ultimately achieved distributive justice, economic efficiency and social morality. In Griffiths v Brown the court also came to a policy decision as it would not have been reasonable for a taxi driver to determine how drunk each passenger was; this case prevented the metaphorical floodgates. However, Burrough J in Richardson v Mellish[29] had a much different opinion with regards to this, he stated that public policy is a very unruly horse, and when once you get astride it you never know where it will carry you. It is unclear why a specific test (Bolam test) inclusive of subjectivity was applied to professionals but not to trainees. It is upon the defendant (a professional) at fault to prove that if another professional was in the same situation, they would do the same; while there is no discount for a trainee. The question also arises as to why a trainee doctor or trainee driver is held to the standard of a reasonably competent driver or a reasonably competent doctor when they clearly lack the experience. While the introduction of subjectivity to the law of negligence has been beneficial to individuals in special circumstances such as children, those mentally or physically disabled and emergencies it is opined that the law should stretch as far to include trainees. It is believed that the law is incoherent with regards to the statement of the ‘act not the actor’[30] especially since the court moved away from the objectivity and introduced subjective elements of the actor, e.g age and mental or physical capacity. The approach taken by the courts is almost completely claimant-centred with dashes of morality, it uses subjectivity with strict limitations in hopes of achieving a means of compensation; this should be changed. [1] Hazell v British Transport Commission [1958] at 171. [2] Donoghue v Stevenson [1932] Lord Atkin at 580, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. [3] Anderson B, Blyth v Birmingham Waterworks [1856] at 784. [4] Greer LJ, Hall v Brooklands Auto-Racing Club [1933] at 224 [5] Lord Radcliffe, Davis Contractors v Fareham Urban District Council [1956] at 728 [6] Lord Steyn, McFarlane v Tayside Health Board [1999] at 82 [7] Birch v Paulson [2012] [8] Glasgow Corporation v Muir [1943] at 457; Bradford-Smart v West Sussex County Council [2002] [9] Nettleship v Weston [1971] 2 QB 691 [10] Roberts v Ramsbottom [1980] [11] Mansfield v Weetabix Ltd [1998] [12] Gates v McKenna [1998] [13] Philips v Whiteley [1938] [14] Wells v Cooper [1958] [15] Ibid 9 [16] Wilsher v Essex AHA [1988] [17] Bolam v Friern Hospital Management Committee [1957] [18] Mulheron 2010, p613 [19] Orchard v Lee [2009] [20] Mullins v Richards [1998] [21] Roe v Minister of Health [1954] 2 WLR 915 Court of Appeal [22] Paris v Stephney BC [1951] [23] Haley v LEB [1964] [24] Ibid 10 & 11 [25] Griffiths v Brown [1998] [26] Brannan v Airtours plc [1999] [27] Watt v Herts County Council [1954] [28] Condon v Basi [1985] [29] Richardson v Mellish [1824] 2 Bing 229, 130 ER 294, 303. [30] Ibid 13 ![]() Proprietary estoppel is an equitable doctrine which essentially allows an informal arrangement to be enforced and proprietary rights to be acquired without complying with the formalities. Courts have an equitable jurisdiction to interfere with an owner’s strict legal rights in relation to land when it would be deemed ‘unconscionable’ for that individual to assert their strict legal rights. This essay seeks to critically discuss Lord Scott’s statement in Cobbe v Yeoman’s Row Management Ltd [2008] which states, “… proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void.”[1] It will clearly analyse proprietary estoppel with regards to Lord Scott’s statement, ultimately concluding to what extent the statement is true and the extent to which it is agreed. Proprietary estoppel can be categorised into three broad types of cases, mistake cases[2], expectation cases[3], and imperfect gift cases[4]. Taylor’s Fashions Ltd v Liverpool Victoria Trustees Ltd[5] established the modern approach to proprietary estoppel, this was approved in Habib Bank v Habib Bank AG Zurich [1981][6]and was applied in Lim Teng Huan v Ang Swee Chuan [1992][7]; for an individual to succeed in a proprietary estoppel claim there must be assurance by the owner, reliance by the claimant and a detriment to the claimant, which all leading to the question of whether it would be unconscionable for the defendant to take advantage of the mistake. Assurance can be active or passive, active assurance is expressed or displayed by the owner which leads to the claimant believing they have an interest in the property. Expressly ‘active’ agreements are applied in numerous cases, in Gillet v Holt [2000][8] where Gillet left school before completing college to work on Holt’s farm for over 40 years due to Holt assuring him that he would inherit the farm upon his death, due to faults in their relationship, Holt changed his will. The court estopped Holt from denying Gillet’s rights to the farm. Other cases which display this are Pascoe v Turner [1979][9], Griffiths v Williams (1977)[10], and Re Basham [1986][11]. Active assurance is seen in the late case of Inwards v Baker [1965][12] where a father encouraged his son to build a bungalow on the land. Passive assurance however is where the claimant is mistaken in their belief of gaining interest in land while the owner does nothing, this will amount to an estoppel as seen in Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] [13].One of the major issues which lead to failure of proprietary estoppel in Cobbe was that of passive assurance by the owner. In this case the claimant and a landowner had an informal agreement to which Cobbe obtained planning permission for the development of the owner’s land. Under the informal deal, the owner would later sell the land to Cobbe at a calculated amount so that he would profit on the increased value of the land as result of the planning permission being granted. The agreement was not binding, it was more of an ‘informal gentleman’s agreement’. After Cobbe obtained the planning permission, the landowner refused to proceed with the ‘promised’ transfer. The claimant then claimed the land by proprietary estoppel but the court refused to allow it. Lord Scott said that the claimant acted on a hope or a gamble, instead of an expectation or mistake to his rights; that assurance should be clear and unambiguous. His reasoning behind this is because it was a commercial agreement, both parties would have known that the proper formalities to enforce such was not sufficed by their negotiations. The assurance that the owner would act in a certain way would not necessarily be enough in a commercial context. However, where there is a genuine expectation in a commercial case, the claim would succeed. In Crabb v Arun DC [1976][14] claimant was assured that their council would build an easement to their land, so that the land can be divided and sold separately without leaving one part of the land landlocked. The council erected a fence with an opening for the assured easement to confirm their intentions. No formalities were met. The claimant relied to his detriment, leaving his land landlocked on the assurance to sell part of his land. The council later filled the gap and demanded £3000 for the easement to be erected. In this case the council was estopped from refusing to build easement because any sum that could have reasonably been demanded for the cost of construction was set-off against the detriment suffered by the claimant; the net cost being £0, with the Council being required to construct the easement. Consequently, where a proprietary estoppel claim is recognised, the court will evaluate the extent of the equity created and how best to satisfy it, even if it means enforcing an agreement declared void by statute. The judgement of Crabb was confirmed in Yaxley v Gotts & Anor [1999].[15]The difference between these two cases is the establishment of a definite assurance, whereas in Cobbe it was a hope or an expectation. Moving away from commercial examples of the success of assurance in proprietary estoppel, the courts are keener to permit agreements statutes declared void if it is by means of family or informal agreements. This is because the claimants who suffered loss may not have had the sufficient capacity to understand that certain formalities should have been put into place for their benefit. There is a predominance of agriculture related cases surrounding this topic. In Thorner v Major [2009] [16]the claimant worked without pay on their cousin’s farm for 40 years on the understanding that they would inherit the farm eventually. This case established that there was no need to have a mistake on the claimant, only that of a belief on the existence of the right. Essentially, the claimant should’ve believed that there is an interest in the land that the owner was committed to creating. Judgements in Thorner was then followed by Clarke v Corless [2010][17] and Gill v Woodall [2010][18] Comparing Thorner and Cobbe, one may notice that there is considerable contradiction between the two since Thorner appears to signify a departure from the restrictive approach to proprietary estoppel established by Cobbe. Nevertheless, in Thorner, Lord Scott didn’t clearly abandon the views he voiced in Cobbe and, indeed, made certain observations on the relationship between proprietary estoppel and 'the remedial constructive trust'. One of the major issues arisen is that of certainty. Lord Walker, Rodger and Neuberger all described the facts of the case as unusual due to the oblique nature of the representation. The issues relating to certainty raised was by Lloyd LJ was whether there was a promise by defendant or a mere statement of current testamentary intention, whether the promise was necessary and should the claimant believed the promise to be legally binding on the defendant. One of the main difficulties arising is that while one may feel sympathy for a trusting claimant in the family context, it would not be acceptable to provide the same remedy to an experienced property developer such as Cobbe. He simply would have known that it was not a legally binding commitment. After considering the cases of Cobbe and Thorner, one would raise the question as to why Cobbe failed but Thorner succeeded. While the temptations exist to rely on the labels of ‘commercial and ‘domestic’, they are not sufficient explanations. The factual limit between 'commercial' and 'domestic' cases is far from secure and requires an explanation, by reference to principle, of the precise features of the two sets of cases which are to be regarded as justifying differential treatment. The decision in Cobbe itself can be reconciled with Thorner on the basis that the promise in Cobbe was insufficiently certain in a different way, in that it was to enter into an agreement in relation to the sale of the disputed land on terms which remained to be agreed fully (and which could not be settled by the courts by reference to any past pattern of dealings between the parties). Cases which followed Thorner show that the strict approach in Cobbe is not always enforced.[19] Other factors of assurance are that it must relate to an interest in land or property[20], it must not be achieved by dishonesty[21] and that innocent misrepresentation is still assurance, however the innocence of the owner would be examined to assess equity[22]. In hopes that detrimental reliance is established by the court to render the owner’s conduct as unconscionable, the detriment must essentially result from reliance on the mistake or assumption[23] or expectation (informal and domestic only), however, assurance does not need to be the sole reason they act to their detriment.[24] To drastically change their position, a claimant should act to their detriment.[25] Cases such as Dillwyn v Llwelyn [26]and Voyce v Voyce [1991] [27]show detrimental reliance due to expenditure of money on building or to improve land. However, in Coombes v Smith [1986] [28]there was no proprietary estoppel because there was no real assurance, she was expected to live there till the child became 18, due to a non-financial detriment, it was more problematic to establish equity, while obiter in Maraj v Chand[29], a woman giving up her home to live with a man who promised her a home is detrimental reliance, thus her receiving proprietary rights. However, it depends on individual circumstances. For detrimental reliance to succeed the owner should have directly encouraged or acquiesced in what the claimant had done, however the owner does not necessarily have to know exactly what the claimant is doing in reliance general knowledge suffices. The last question asked before awarding proprietary rights due to all the factors being satisfied is that of unconscionability. The following seeks to settle the issues arising out of Lord Scott’s statement, whether proprietary estoppel can enforce an agreement that statute declares void. As seen in the cases analysed, the courts often use their discretion in the decision of awarding proprietary rights as remedies. This does not necessarily mean that they will all the time, they may also award licences, cash and sometimes even nothing. An often misconception is that proprietary rights are estoppels; proprietary estoppel gives rise to an equity[30], for this equity to be binding it would need to be protected by law using the accurate formalities. Under Registered land a s.32 Notice LRA 2002 would be applied or if the claimant is in actual occupation, an overriding interest under Schedule 3 paragraph 2 LRA 2002 would be applied. As seen in Baker v Baker [31]the claimant cannot be awarded more than what is expected, although sometimes it does.[32] The courts often use two approaches in deciding remedies, the expectation approach and the detriment approach. The expectation approach is more seen in business cases[33] and should have been seen in Cobbe if judgement was different, whereas, detriment approach is utilized in family cases. In Crabb it was noted that the claimant would not necessarily get what they expect. As established in Jennings v Rice[34], one of the leading cases on remedies, the expectation and detriment should be proportionate, thus, assuming the expectation is present, spending £10,000 on someone else’s property isn’t detrimental, while spending £10,000 of life savings on property is detrimental. Although the judgement in Cobbe is still currently followed in recent cases such as Micheal v Phillips [2017][35] and Achom and others v Lalic and others - [2014][36] there is a clear line which is drawn to separate where equity does not step in to enforce an agreement void by statute. The mere definition of proprietary estoppel, is it “allows an informal arrangement to be enforced and proprietary rights to be acquired without complying with the formalities”. It can be agreed that contrasting Cobbe and Thorner clearly displays this, where a commercial party (which is aware that the agreement is void at law due to experience and knowledge) act on an expectation or hope instead of direct assurance, equity does not favour them. Few may prejudice the unfairness for commercial parties who would have suffered detriment or financial loss however as seen in the case of Cobbe, while they did not get what they expected, they were awarded £150,000 due to quantum meruit. Concluding, Lord Scott’s judgement with regards to Cobbe is that of pragmatism. He acknowledged that holding individuals commercially experienced to the same standard as that in family disputes was not equitable. His statement is only agreed however only with regards to commercial parties attempting to abuse proprietary estoppel for agreements they knew void. [1] (Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752, para 29, per Lord Scott of Foscote.) [2] Dillwyn v Llwelyn [1862]- father offered son a farm in which he can build because he wanted the con close by, the land was not transferred to the son, regardless the son built a home which was encouraged by the father. Father died and relatives challenged the will, however due to the son’s expenditure and the father’s acquiescence, estoppel was established rewarding the son with equitable right to the land. [3] Where the claimant and owner acted in a way that the claimant had a reasonable right to suppose that he had acquired a right in the owner’s land [4] Owner assured claimant that a gift would be made but then tried to rely on lack of formalities to deny gift. [5] Taylor’s Fashions Ltd v Liverpool Victoria Trustees Ltd [1982] QB 133 [6] Habib Bank v Habib Bank AG Zurich [1981] 1 WLR 1265 [7] Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 1306 [8] Gillet v Holt [2000] 2 All ER 289 [9] Pascoe v Turner [1979] 1 WLR 431 [10] Griffiths v Williams (1977) 248 EG 947 [11] Re Basham [1986] 1 WLR 498 [12] Inwards v Baker [1965] 2 QB 29 [13] Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] EWCA Civ 684 [14] Crabb v Arun [1976] [15] Yaxley v Gotts & Anor [1999] EWCA Civ 3006 Court of Appeal [16] Thorner v Major [2009] [17] Clarke v Corless [2010] EWCA Civ 338 [18] Gill v Woodall [2010] EWCA Civ 1430 [19] Clarke v Corless [2010] EWCA Civ 338; Gill v Woodall [2010] EWCA Civ 1430 [20] Layton v Martin [1986] 2 FLR 227 [21] Murphy v Rayner [2011] EWHC 1 [22] Qayyum v Hameed [2009] EWCA Civ 352 [23] Attorney General of Hong Kong v Humphrey's Estate [1987] AC 114 [24] Evans v HSBC Trust [2005] WTLR 1289 [25] Suggitt v Suggitt [2012] EWCA Civ 1140 [26] Dillwyn v Llwelyn [27] Voyce v Voyce (1991) 62 P & CR 290 [28] Coombes v Smith [1986] [29] Maraj v Chand [30] Registered Land: s116 LRA 2002; Unregistered land and pre-LRA 2002 registered land, cases are applied. [31] Baker v Baker [32] Ibid. 14 [33] Ibid 10, 26 [34] Jennings v Rice [35] Micheal v Phillips [2017] EWHC 614 (QB) [36] Achom and others v Lalic and others - [2014] All ER (D) 73 ![]() “The conclusion which I would reach…..is that the wide distinction between the validity test for powers and that for trust powers is unfortunate and wrong, that the rule recently fastened upon the courts by Inland Revenue Commissioners v. Broadway Cottages Trust ought to be discarded, and that the test for the validity of trust powers ought to be similar to that accepted by this House in In re Gulbenkian's Settlements [1970] A.C. 508 for powers, namely, that the trust is valid if it can be said with certainty that any given individual is or is not a member of the class.” Lord Wilberforce in McPhail v Doulton [1971] A.C. 424 at 451 Express trust necessitates the coincidence of the three certainties listed in Knight v Knight[1], lack of such results in the trust being void ab initio. This essay seeks to critically discuss the statement made by Lord Wilberforce in McPhail v Doulton[2], clearly analysing the certainty of objects test for fixed trusts, discretionary (power) trusts and fiduciary trusts (powers of appointment); ultimately concluding that the any given postulant test which states that any given being ‘is or is not’ part of a class isn’t a sensible and pragmatic approach, thus as discussed, isn’t appropriate for power trusts. Per Knight v Knight[3], it was established that there must be a certainty of intention, a certainty of subject matter, and a certainty of objects. Certainty of objects is the most intricate and has undeniably caused the most legal wrangling and debates. At its core is the perception that the court should be able to ascertain the beneficiary(/ies) of the trust, thus, the beneficiary principle operates alongside the certainty of objects. Emphasising this, Lord Denning in Re Vandervell’s Trusts (No. 2) stated, “It is clear law that a trust (other than a charitable trust) must be for ascertainable beneficiaries.” Fixed trusts are constituted by a settlor for a pre-determined class of individuals where each is entitled to a set share, and executed by a trustee for benefit of the beneficiary(/ies). It is imperative that the court can ascertain who the beneficiaries of the trust are at the time of property distribution for there to be a valid fixed trust, this is known as a ‘complete list test’. Conceptual and evidential certainty as to beneficiaries was emphasised in IRC v Broadway Cottages[4]. Conceptual certainty is the ability to define the description of the class with certitude, if it is impossible to compile the ‘complete list test’ then the trust is void. Evidential certainty is the ability to prove that someone is a beneficiary, thus, even if the classification of the object is certain, once there is difficulty proving exactly who the beneficiaries should be, the trust would be void. The courts however have taken both a wide and narrow accommodating approach regarding this. In Re Tuck Settlement Trust[5], the court permitted a third party (Chief Rabbi) to arbitrate the will to ensure that Sir Adolph Tuck’s successors were of Jewish fate. While in Re Wynn[6] the court was reluctant to permit a clause allowing trustees to determine all uncertain elements of the trust. It was established that it was not a requirement for the beneficiaries to be ascertained (location of beneficiary or continued existence); a ‘Benjamin Order’ would permit the trustee to distribute property to the ascertainable beneficiaries while the trustee, however, must provide constructive notice, that is, publishing an advertisement in the London Gazette or another appropriate forum in hopes of locating the unascertainable beneficiaries; if that also fails, the money would go to the crown. There is no evidence that the size of the class is relevant for fixed trusts due to the application of the complete list test. The capriciousness of the settlor has never been questioned with regards to fixed trusts, nor has it ever invalidated a trust. The precedent set in IRC v Broadway Cottages [7]has operated well, allowing the court to endorse more equitable outcomes,[8] discretionary trusts however, have proven to be more contentious. In a discretionary trust, the settlor defines the class, while the trustee must choose who the beneficiaries are and how much property they would be entitled to. Originally the court echoed the approach of the ‘complete list test’ set out in IRC v Broadway Cottages[9] for discretionary trusts, where it was believed that ‘equity was equality’ authorizing the distribution of property equally; however, this was redeveloped under Lord Wilberforce in McPhail v Doulton[10]. In this case, a trust was created via deed for the benefit of employees and ex-employees of a corporation including their relatives and dependants. Applying the ‘complete list test’, it would not have been possible to list all the members of the class, thus, Lord Wilberforce ruled that the operative question was whether the court could’ve said with certainty that a person is or is not a member of the class, on that ground, it was satisfied. This was known as the ‘any given postulant test’ and refers to anyone who may be considered object. Consequently, the validity of the trust relied on whether ‘relatives’ and ‘dependants’ were certain objects. This case was appealed to the House of Lords where it was concluded that the trust was valid[11]. If the trust was not conceptually certain, it would be rendered void. In Re Baden Deed Trusts (No 2)[12] the court recognised that ‘relatives’ and ‘dependants’ were conceptually certain. The semantics of relatives was established as a ‘next of kin’ by Stamp LJ and ‘descendants from a common ancestor’ by Sachs and Megaw LJJ, subsequently, the normal meaning of ‘family’ as seen in Re Barlow Will Trusts[13] was considered as those related by blood; while a dependant is ‘anyone wholly or partly dependant on the means of another’ by Sachs LJ and ‘financially dependent’ by Stamp LJ. Sachs LJ also took into consideration that ‘someone under a moral obligation’ wouldn’t be conceptually certain, while first cousins’ would be. Additionally, Browne-Wilkinson J concluded in Re Barlow Will Trusts[14] that ‘friends’ was not sufficiently certain. While evidential certainty was satisfied by all three judges in Re Baden (No 2)[15], they utilised diverse tests to establish the conclusion. Sachs LJ’s reasoning was preferred, he concluded that the courts would never be defeated by evidential certainty and that the claimant must prove that they are in the class, if they couldn’t prove it, they weren’t in. He said that it was simply a question of fact based on the evidence as to whether a person fell within the class. Megaw LJ stated that it was only necessary to prove that a substantial number of objects fell within the class, and that the trust would be valid even though it could be proved if they were or were not in the class. Lastly, Stamp LJ concluded that evidential uncertainty would defeat the trust. Ascertainability of objects do not invalidate a discretionary trust, inability to ascertain an object simply means that they would not benefit from the trust. Unlike fixed trusts which apply to a smaller class of individuals, discretionary trusts apply to a much larger class, however, where the class is too large, it can be considered administratively unworkable and would thus render the trust void. In R v District Auditor, ex p West Yorkshire MCC[16], it was concluded that ‘the inhabitants of West Yorkshire’ which amounted to about 2.5million persons, invalidated the trust. Subsequently in Re Harding[17], the trust would have been void due to administrative unworkability, if it wasn’t for charitable purposes. Case law sets out multiple examples displaying administrative unworkability, as Lord Wilberforce suggested in McPhail v Doulton that ‘all the residents of Greater London’ is administratively unworkable. Additionally, in Re Hay’s Settlement Trust[18], it was established that a discretionary trust for anyone other than a few specified people would be administratively unworkable. While administrative unworkability exists, it is inconsistent with the intention of the settlor and should be rejected. There is no definite answer as to whether the size of the class would render the trust void. Capriciousness may render a trust void if the settler did not possess sensible intent in establishing the trust. Re Manisty’s Settlement[19] established that if the settlor creates a trust for residents in an area where he has no connection and no reason to benefit then it would be capricious, while in R v District Auditor, ex p West Yorkshire MCC[20], the trust was found to not be capricious because the council had a sensible reason for benefitting West Yorkshire. While it does play a role, no power trust has been made void due to capriciousness. Fiduciary powers or powers of appointment are held by trustees and other fiduciaries. Where powers are appointed, the donor defines the class, but there is no obligation on the donee to distribute to the objects. Re Gulbenkian’s Settlements[21] established that the test for fiduciary powers was the ‘any given postulant test’ as in discretionary trusts, where any given person was or was not part of the class. Conceptual certainty is relevant as applied to fiduciary powers, however there are strict and lenient approaches. In Re Gulbenkian’s Settlements[22], the object included those with whom a person had been residing, this was conceptually certain. While in Re Baden (No 2)[23], it needed a clear definition to be valid. Discretionary trusts and fiduciary powers uses the same test for evidential certainty. Ascertainability of objects do not invalidate a power, this is clearer for powers because there is no obligation on the donor to exercise power. A fiduciary power cannot be struck down for administrative unworkability due to the size of the class. Capriciousness can invalidate a fiduciary power, it would be considered capricious if there is no distinct connection with the donor. Essentially, fixed trusts and discretionary trusts should not have to apply the same test for certainty of objects. The ‘any given postulant test’ which states that any given person is or is not part of a class allows flexibility for the existence of a discretionary trust. Initially, it was believed that ‘equity was equality’, thus all the property on a discretionary trust was to be divided to all the members of the class in equal shares; principally, this may not always be equitable. The current test for a discretionary trust allows trustees to exercise their prudent discretion as to who benefits from the trust and how much they can receive. In some cases, allowing those who were closest to the settlor to benefit the most. It can be argued that true equity exists in a discretionary trust. Contrary, a fixed trust therefore has a more rigorous test for certainty of objects. While in a discretionary trust, the trust may be found void on the grounds of administrative unworkability, a fixed trust with the same objects as the discretionary trust may not be found administratively unworkable because a complete list of all the objects would be drawn up by the time of property distribution. This ultimately prevents the failure of a trust, due to lack of ascertainability and conceptual or evidential certainty of the beneficiaries. Due to resounding similarity between discretionary (power) trusts and fiduciary powers (powers of appointment) one can argue that the same test should be applied for both. Lord Wilberforce, regarded as ‘broken new ground’, stating that even him, a layman and a logician, would find it difficult to understand the difference between trust powers and powers. The essential test for these is already the same, ‘any given postulant test’, the only difference is the administrative unworkability of discretionary trusts. Ability to exercise powers to the world at a whole, other than the limited class would not make the powers void. Powers can be exercised by the donors to anyone they seem fit. Whether the class is large would not prevent the trustee from performing their duty, especially since there is no compulsory responsibility to even perform any duty. However, since a power of appointment is viewed as a gift rather than a trust, it is more flexible at law; it is opined that it should remain that way. Due to the distinction between a trust and a power, the same test for both cannot be applied. A trust is obligatory while a power is discretionary, trusts would require more rigid regulations and tests. To apply the same test for both strips the flexibility of powers, essentially putting regulations on a ‘gift’ that should not be there. One of the fundamental distinctions between a power and a power trust is the capriciousness of the settlor or donor. Similar with a gift, there must be an intention, in this case, for powers, there must be a sensible intent for the donor to benefit the objects. Trust powers and fiduciary powers should therefore have different tests. Lord Wilberforce’s view for power trusts is that it ought to be more like powers and he sought to discard the applicable test that was being used as discussed in IRC v Broadway Cottages. Many have followed the “is or is not’ test over the years for discretionary trusts and it has been applied or mentioned in multiple rulings; Twinsectra Ltd v Yardley (2002)[24] and more recently, Trustees of the Christian Brothers in Western Australia Inc v Attorney General of Western Australia (2007)[25]. It can be disputed that McPhail v Doulton[26], for discretionary trusts has resulted in more heat than light. It has developed nothing more than convoluted reasonings and can be viewed as the unnecessary result of over-explication and the expectation of potential theoretical complications that are more real than supposed; while the reasoning behind the complete list test for fixed trusts is easy to ascertain and defend. The drawn-out, high-level litigation that was generated by Mr Baden’s Deed Trusts[27] could be said to be the outcome of the rapidly increasing size of the fund which fuelled the enthusiasm of the executors to pursue the claim than the product of genuine jurisprudential difficulty arising from the issues in question. After a thorough examination of fixed trusts, discretionary trusts and power trust, it should be concluded that while equality is not equity, something is better than nothing; discretionary trusts and fixed trusts should have the same test applied. A settlor’s intent for choosing a class means that he would’ve wished to benefit everyone in the class. Allowing a trustee to now choose who to benefit, excluding some, may not have been the settlor’s intent. Additionally, applying the same test for power trusts and powers gives the trustee too much flexibility; permitting this allows a trustee to refuse to give the property to anyone in the class, or may open the door to perhaps give the property to themselves, given that the donor included them in the class. Of all the tests, the complete list test is the most certain, it allows the beneficiaries to know exactly what they are to benefit and should be re-applied to discretionary tests. [1] Knight v Knight [1840] Court of Chancery, 49 ER 58 3 Beav 148 (Court of Chancery). [2] McPhail v Doulton [1971] House of Lords, UKHL 1, AC 424 (House of Lords). [3] Knight v Knight [1840] Court of Chancery, 49 ER 58 3 Beav 148 (Court of Chancery). [4] Inland Revenue v Broadway Cottages: CA 26 Jul 1954 [5] Re Tuck’s Settlement Trusts: CA 1 Nov 1977 [6] Re Wynn [1952] [7] Ibid (4) [8] Ibid (5) [9] Ibid (4) [10] Ibid (2) [11] Re Baden’s Deed Trusts (No 2) [1972] [12] Ibid (11) [13] Re Barlow Will Trusts [1979] [14] Ibid (13) [15] Ibid (11) [16] R v District Auditor, ex p West Yorkshire MCC [1986] [17] Re Harding [18] Re Hay’s Settlement Trust [19] Re Manisty’s Settlement [20] Ibid (16) [21] Re Gulbenkian’s Settlements Trust [1970] AC 508 [22] Ibid (21) [23] Ibid (11) [24] Twinsectra Ltd v Yardley (2002) [25] Trustees of the Christian Brothers in Western Australia Inc v Attorney General of Western Australia (2007) [26] Ibid (2) [27] Ibid (11)
Why will the court rarely impose such duty and in what circumstances might such a duty be imposed?The tort of negligence, according to Percy H. Winfield’s lasting definition, is “the breach of a legal duty to take care by an inadvertent act or omission that injures another.” The law concerning negligence by the defendant for a breach due to omission, set out in Stovin v Wise [1996] & Smith v Littlewoods[1987] states that there is no universal duty to act in prevention of harm or injury to another, thus, if there is no duty, there can be no liability and therefore, no compensation for harm caused by failure of someone to do something.[1] Extensions of Donoghue v Stevenson [1932][2] interprets Lord Atkin’s statement for a duty of care arising due to acts or omissions to now suggest that he only meant omissions in situations where a pre-tortious relationship existed. While there may be arguments made against the exclusionary principle regarding pure omissions, the rule was strongly reiterated by the House of Lords in Sutradhar v National Environmental Research Council [2006][3]. Typically, courts infrequently impose a duty of care on defendants for an omission(nonfeasance). Lord Hoffman in Stovin v Wise [1996][4] identified political, moral and economic reasons why no duty should be owed. In political terms, Lord Hoffman said that it would be an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions and to impose upon him a duty to rescue or protect. The moral version applies the “Why me?” argument since a duty to prevent harm or assist another may apply to a large and indeterminate class of people, therefore, why should one be held liable over another? One of the policies courts consider is deterrence, in Lord Hoffman’s economic argument, he applied such. The efficient allocation of resources usually requires an activity should bear its own costs. The market can now appear distorted if it is able to impose its costs on people, making it appear cheaper than it really is; therefore, liability to pay compensation for loss caused, acts as a deterrent against increasing the cost of the activity to the community and thus reduces externalities. Courts often base their decisions on ‘floodgates principle’, this legal principle restricts or limits the right to make claims for damages due to a concern that permitting a claimant to recover in such situation may open the metaphorical ‘floodgates’ to countless claims; permitting certain cases, especially against a public body, can have inconsiderable consequences. Article 223-6 of the French Penal Code[5] makes it a criminal offence to not assist someone in danger (once it does not risk your own safety), this should also translate to a civil obligation and potential liability if breached. However, Lord Keith in Yuen Kun Yeu v Attorney General of Hong Kong [1988][6] stated that there is no duty to even go to the rescue of another who is about to injure themselves accidentally or even to shout to warn them. This does extend, that if someone does act, they have a duty to not make the situation worse as they will be held liable. Various countries have passed ‘Good Samaritan’ statutes which provide immunity from suits, while the UK has not. The Social Action, Responsibility and Heroism Act 2015 (SARAH)[7] does not provide immunity from lawsuits, but rather compels the court to consider whether the defendant fell below the standard of the reasonable or expected standard of care. Though a duty of care for omissions is rarely enforceable, there are some limited exceptional circumstances which impose a duty of care upon the defendant. These circumstances include: Control, Assumption of Responsibility, Creation or adoption of risk, and lastly, legal/statutory duties regarding public bodies. Adaptation of special relationships was established in the cases of Anns v Merton LBC [1978][8] and Caparo Industries PLC v Dickman [1990][9] which stated that there must be a sufficient proximity between the claimant and the defendant, not just geographical, but also in relationship. These are situations where the defendant should owe a duty to the claimant because they exercise a high degree of control over them, or have express responsibility over them. Other than the standard application to parents and children, teachers and students, drivers to passengers[10], doctor to patients[11] and many more pre-existing relationships, it also extends to situations where the defendants exercise control of persons harmed that they have an imposed positive duty to take steps to prevent such, either infliction by claimant or other persons to claimant. In Reeves v Commissioner of Police for the Metropolis [2000][12] a known suicidal prisoner committed suicide in police custody, police were found liable since they would’ve been obligated to ensure his safety due to his instability, whereas, in Kirkham v Chief Constable of Greater Manchester [1990][13] a similar claim of a prisoner committing suicide was brought but it was found that the police were not liable since a doctor verified that claimant was not mentally ill; thus the duty of care owed is to only take reasonable steps to assess whether prisoner posed a suicide risk and to act accordingly. This was later emphasized in Savage v South Essex Partnership NHS Trust [2008][14] where a positive duty was owed to a suicidal patient who was detained in a mental hospital, to keep them in that hospital. Positive obligations should arise if the defendant assumed responsibility for the claimant’s well-being. In Costello v Chief Constable of Northumbria Police [1999][15], a duty arose from an employment relationship, where it was established that Police officers assume a responsibility to ‘watch each other’s back’. Consequently, in Barret v Ministry of Defence [1995][16] a duty was owed due to their positive act prior to the omission. When the defendant assumed responsibility for him, they fell short of the reasonable standard expected, since they did not summon medical assistance and provided inadequate supervision. If the defendant-accidentally or intentionally- creates a dangerous situation, a positive duty to remediate danger may be imposed. Capital & Counties plc v Hampshire County Council [1997][17] established that the fire service as a public body owed a duty to not create danger and to not make the situation worse if positive actions are to be done. In Goldman v Hargrave [1967][18] a tree caught fire after being struck by lightning, defendant deciding to take no steps to extinguish it shows adoption of the risk of the fire spreading to the neighbor’s property, thus, a duty of care was owed. Concerning public bodies, a duty of care claim in tort cannot be brought by a matter of Policy decisions made by Government, but rather by operational decisions. It has been cited that the police do not owe a duty of care to an individual victim of crime, however, to the public.[19] Where there is sufficient foreseeability[20] and sufficient proximity[21] as stated in the Caparo test[22], the police would owe a duty of care. The only duty of care imposed on the fire brigade is not make the situation worse[23]. The ambulance service owes a duty of care once the 999 call is accepted, they must attend in a reasonable amount of time[24]. Concerning the armed forces, there is no duty of care owed in combat[25], whereas a duty can be owed in exercises outside of war[26]. There has been an expansion of the law with respects to other types of public bodies, these include child welfare and protection services or the education services of local authorities. The European Court of Human Rights has influenced the law of Tort, potential breaches of human rights are now considered alongside claims of negligence[27]. While there may be potential movement towards the use of breach as a control mechanism in negligence claims, the House of Lords rejected this idea in the leading child welfare case[28]. There is no general duty to prevent other people causing damage (3rd Parties). The exceptions which arise are: proximity between defendant and claimant[29], proximity between defendant and third party[30], creation of a source of danger[31] and failure to abate known danger[32]. While the law assumes a restrictive approach to imposing liability in relation to omissions, there are still numerous circumstances where bodies can be held liable for breach of an owed duty of care. It can be opined that the law regarding misfeasance may prompt individual to nonfeasance. Considering the moral obligation to act, the repercussions of acting and consequently causing harm may make a ‘Good Samaritan’ liable. Through the harsh operation of the law, persons without a legal obligation to act in the prevention of harm to another may not want to assume the risk of a ‘lawsuit’. [1] Stovin v Wise [1996]; Smith v Littlewoods [1987] [2] Donoghue v Stevenson [1932] [3] Sutradhar v National Environmental Research Council [2006] [4] abid [5] Article 223-6 French Penal Code [6] Yuen Kun Yeu v Attorney General of Hong Kong [1988] [7] The Social Action, Responsibility and Heroism Act 2015 (SARAH) [8] Anns v Merton LBC [1978] [9] Caparo Industries PLC v Dickman [1990] [10] Nettleship v Weston [11] Barnett v Chelsea & Kensington Hospital [12] Reeves v Commissioner of Police for the Metropolis [2000] [13] Kirkham v Chief Constable of Greater Manchester [1990] [14] Savage v South Essex Partnership NHS Trust [2008] [15] Costello v Chief Constable of Northumbria Police [1999] [16] Barret v Ministry of Defence [1995] [17] Capital & Counties plc v Hampshire County Council [1997] [18] Goldman v Hargrave [1967] [19] Hill v CC of West Yorkshire [1989] [20] Swinney v CC of Northumbria [1999] [21] Reeves v Metropolitan Police Commissioner [2000] [22] abid [23] Church of Jesus Christ of Latter Day Saints v West Yorkshire FCDA [24] Kent v Griffiths [2000] [25] Mulcahy v Ministry of Defence [1996] [26] Bici v Ministry of Defence [2004] [27] Osman v UK [1999]; Z v UK [2001] [28] JD v East Berkshire Community Health NHS Trust and others [2005] 2 WLR 993 [29] Selwood v Durham County Council & Ors [2012] [30] Home Office v Dorset Yacht [1970] [31] Haynes v Harwood [1936] [32] Everett v Comojo (UK) Ltd [2011] |
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September 2019
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