Case law questions please help very important thanks Watch

drpepp3rz
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The case law analysis exercise was on the judgment of Lord Nicholls in the case of Majrowski v Guy's and St Thomas's NHS Trust [2006] 3 WLR 125

Link: http://www.publications.parliament.u...0712/majro.pdf

THE EXERCISE IS ONLY BASED ON LORD NICHOLLS, YOU ARE NOT EXPECTED TO READ ANY OTHER JUDGEMENTS (THIS IS WHAT MAKES THIS EXERCISE SIGNIFICANTLY SHORTER)

Just wondering how you guys would go about these questions?


2.(a) On what basis did Lord Nicholls reject the arguments made by the appellant on the subject of vicarious liability and harassment? [25]

(b) What approaches and/or aids to interpretation were explicitly or implicitly relied on by him? [5]

(c) Of what precedential value were the cases relied on by Lord Nicholls and was his handling of them persuasive? [15]

3 You are a statutory draftsman in the UK Parliament? Draft a statutory provision or statutory provisions to overrule the ratio in the case. [10]


I'm really worried I've done it wrong so if you guys can contribute anything, it would be much appreciated.

Thanks so much for any time whatsoever you spent on this.



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Enoxial
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If you list the facts of the case that would be very helpful...
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drpepp3rz
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Vicarious liability and harassment

23 Against that legislative background I turn to the trust's case. The principal thrust of the trust's submissions is that the 1997 Act was primarily a legislative response to the public order problem of stalking. The Act was not aimed at the workplace. It is a public order provision designed to punish perpetrators for the anxiety and upset they cause to victims, not blameless employers who happen to be solvent and available as a target for litigation. Vicarious liability would have consequences for employers which Parliament cannot have intended. Vicarious liability would mean that a blameless employer would be liable in damages in respect of a cause of action wherein damages are recoverable for anxiety short of personal injury, foreseeability of damage is not an essential ingredient, and the limitation period is six years and not the usual period applicable to personal injury claims. The deterrent effect of ordering the perpetrator to pay compensation would be undermined by drawing litigation away from the very person guilty of the offence. Vicarious liability would increase very considerably the volume of claims based on stress, anxiety or other emotional problems at *132 work. The courts would be unable to strike out unmeritorious claims. The burden on employers, insurers and the administration of justice would be wholly unjustified.
24 I am not persuaded by these arguments. Neither the terms nor the practical effect of this legislation indicate that Parliament intended to exclude the ordinary principle of vicarious liability.
25 As to the terms of the legislation, by section 3 Parliament created a new cause of action, a new civil wrong. Damages are one of the remedies for this wrong, although they are not the primary remedy. Parliament has spelled out some particular features of this new wrong: anxiety is a head of damage, the limitation period is six years, and so on. These features do not in themselves indicate an intention to exclude vicarious liability. Vicarious liability arises only if the new wrong is committed by an employee in the course of his employment, as already described. The acts of the employee must meet the “close connection” test. If an employee's acts of harassment meet this test, I am at a loss to see why these particular features of this newly created wrong should be thought to place this wrong in a special category in which an employer is exempt from vicarious liability. It is true that this new wrong usually comprises conduct of an intensely personal character between two individuals. But this feature may also be present with other wrongs which attract vicarious liability, such as assault.
26 Nor does imposition of criminal liability only on the perpetrator of the wrong, and on a person who aids, abets, counsels or procures the harassing conduct, point to a different conclusion. Conversion, assault and battery may attract criminal liability as well as civil liability, but this does not exclude vicarious liability.
27 I turn to the practical effect of the legislation. Vicarious liability for an employee's harassment of another person, whether a fellow employee or not, will to some extent increase employers' burdens. That is clear. But, here again, this does not suffice to show Parliament intended to exclude the ordinary common law principle of vicarious liability. Parliament added harassment to the list of civil wrongs. Parliament did so because it considered the existing law provided insufficient protection for victims of harassment. The inevitable consequence of Parliament creating this new wrong of universal application is that at times an employee will commit this wrong in the course of his employment. This prompts the question: why should an employer have a special dispensation in respect of the newly-created wrong and not be liable if an employee commits this wrong in the course of his employment? The contemporary rationale of employers' vicarious liability is as applicable to this new wrong as it is to common law torts.
28 Take a case where an employee, in the course of his employment, harasses a non-employee, such as a customer of the employer. In such a case the employer would be liable if his employee had assaulted the customer. Why should this not equally be so in respect of harassment? In principle, harassment arising from a dispute between two employees stands on the same footing. If, acting in the course of his employment, one employee assaults another, the employer is liable. Why should harassment be treated differently?
29 As I see it, the matter of most concern to employers is the prospect of abuse in cases of alleged workplace harassment. Employers fear the *133 prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees' harassment. Disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, will all too readily advance unmeritorious claims for compensation for harassment. Internal grievance procedures will not always satisfy an employee who is nursing a grievance. Although awards of damages for anxiety under the 1997 Act will normally be modest, a claimant may well pursue his present or erstwhile employer, not the alleged wrongdoer himself. The claim may be put forward for the first time years after the alleged harassment is said to have occurred. The alleged perpetrator may no longer be with the employer and may not be traceable.
30 This is a real and understandable concern. But these difficulties, and the prospect of abuse, are not sufficient reasons for excluding vicarious liability. To exclude liability on these grounds would be, to use the hackneyed phrase, to throw the baby out with the bathwater. It would mean that where serious harassment by an employee in the course of his employment has occurred, the victim-who may not be a fellow employee-would not have the right normally provided by the law to persons who suffer a wrong in that circumstance, namely, the right to have recourse to the wrongdoer's employer. The possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 .
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Assie123
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Did you find the answers to the above ?
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Illiberal Liberal
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(Original post by Assie123)
Did you find the answers to the above ?
This thread is from 2013 :lol:
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Assie123
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Yes I understand I'm also dealing with a similar question that's why I asked
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Illiberal Liberal
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(Original post by Assie123)
Yes I understand I'm also dealing with a similar question that's why I asked
Well the OP hasn't been on TSR since Boxing Day 2013, so you'll be waiting for a while if you're expecting a reply...
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Assie123
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Can you help?
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