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Understanding Vicarious Liability UK

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Canadian Tort Law

Torts – Nature Of Tort Law And LiabilityThe Court of Allure kept in mind the similarities between the tort of harassment, as identified by the Trial Judge, and the already-existing tort of willful infliction of mental suffering (" IIMS"): Plainly, the elements of the tort of harassment acknowledged by the trial judge are comparable to, yet less burdensome than, the aspects of IIMS. Toronto personal injury lawyer Greg Neinstein.

( See para. 48). For the Court of Appeal, the tort of IIMS supplies a well-established basis for suing for mental suffering, including in the employment context. While the Court declined to "foreclose the development of an appropriately developed tort of harassment" in the future, it inevitably concluded there was "no engaging reason" to acknowledge a brand-new tort in this instance.

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understand that Ontario's tort law system is complex, which accident law is a diverse and varied subset of this system. There are numerous kinds of personal injury claims that refer the various types of injury. Our group is equipped with the understanding, abilities, and experience necessary to assist protect payment in any injury claim. During our more than four decades in company, we have represented customers in a large selection of injury cases.

If not currently, after that when should Canadian courts acknowledge a brand-new tort? Exactly how does the usual legislation develop? Should Canadian courts identify a brand-new tort of harassment? These are substantial questions of public significance resolved by the decision of the Court of Allure. The Court of Appeal had this to claim in response to such inquiries: To pose the concern this way is to suggest that the recognition of brand-new torts is, in essence, an issue of judicial discernment that the court can develop a brand-new tort anytime it considers it suitable to do so.

( See para. 38). Mentioning Watkins v. Olafson, 1989 CanLII 36 (SCC), the Court of Allure noted that usual legislation change is "evolutionary in nature: it continues gradually and incrementally instead than swiftly and drastically". (See para. 20). The Court additionally recommended, mentioning R. v. Salituro, 1991 CanLII 17 (SCC) as well as R.

Ontario Tort Claims Explained

Mann, 2004 SCC 52 (CanLII) that considerable modifications to the law are better delegated legislatures. In doing so, the Court of Appeal invoked the concept that autonomous legislatures need to assume the significant responsibility for making lawful reforms. (See paras. 21-22). Beginning with these premises, the Court of Charm supported the strategy taken by Sharpe J.A.

Tsige, 2012 ONCA 32 (CanLII) the decision in which the Court of Charm identified the tort of intrusion upon seclusion: Far from being created from entire fabric, the breach upon seclusion tort was based in what Sharpe J.A. recognized as an emerging acceptance of claims for violation of personal privacy. He meticulously assessed Ontario as well as Canadian instance law, in which he discerned both supportive dicta and also a rejection to turn down the presence of the tort, and rural regulation that established a right to privacy while not foreclosing common legislation growth.

He attracted upon American tort regulation, which recognizes a right to privacy, in addition to the law of the UK, Australia, and New Zealand. He also kept in mind social change in specific, technical advancements that pose a hazard to individual privacy and the incentive for reform that it created - Neinstein Personal Injury Lawyers." [M] ost importantly," he said, "we exist in this situation with facts that crave a remedy": at para.

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( See para. 25). From the foregoing, the Court of Allure determined there was simply no basis to identify a new tort right here. For example, the choice listed below might not be understood as "a culmination of a variety of associated legal developments". (See para. 39). Furthermore, there was no academic authority or engaging plan reasons to acknowledge a brand-new tort.

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40). Lastly, unlike the scenario in Jones v. Tsige, this was not a case "whose facts demand the development of a novel legal remedy". (See para. 41). For the Court of Charm, that treatment (challenging to gain access to though it might be) already exists at Canadian law: the tort of IIMS.

42). Sean Gaudet and also James Gorham (Justice Canada, Toronto) Guidance for the Respondent: Laura Youthful (Laura Young Law Workplaces, Toronto) & John Kingman Phillips as well as John-Otto Phillips (Waddell Phillips, Toronto).

Product obligation law in Canada is based upon: (i) liability in agreement; and also (ii) fault-based liability under the law of tort (oversight) or, in Quebec, the law of civil responsibility. Other than in Quebec, Canadian regulation allows concurrent obligation in contract and in tort. In agreement, an event to an agreement for the acquisition and sale of a product is entitled to sue for damages for violation of agreement if the high quality, fitness, or efficiency of the item does not comply with the express or suggested terms of the agreement.

What Is A Tort Claim?

In some provinces, regulation restricts the exemption of these statutory guarantees and also problems from contracts for the sale of items to consumers (i.e. not for business objectives). Consumer defense statutes in the majority of provinces likewise provide treatments for unfair methods, consisting of problems or rescission. In the usual legislation provinces, responsibility in tort is grounded in carelessness and is fault-based. There are various other areas past joint and also numerous obligation that insurers as well as various other teams want changing. Currently, problems for loss of revenue are determined on the basis of gross earnings, which do not consider taxation and also other employment deductions. In various other words "complainants can gather more than they would have received if they were functioning," Bundus says.

Gunnell suggests that when it pertains to loss of income "it is also easy to increase what he or she could be worth. You begin getting some huge numbers, which winds up terrifying you off going to trial, due to the fact that your plan is mosting likely to be marked. It is impressive what people might end up making when they ramp everything up." Howe counters that the government has actually provided the victim's right to complete compensation by not exhausting future income.

" The question of tax obligations is in between the individual as well as the state. The insurance market is sticking its nose where it doesn't belong." In regards to vicarious obligation, Gunnell says ins 2015 intro of Bill C-45 right into Ontario, which introduced criminal obligation for employees as well as companies for irresponsible conduct, has raised recognition of the issue.

" Several of our participants are stating 'we need to look at our procedures, we don't want to be held liable for what among our staff members did,' I assume we are getting back to some of the reasons vehicle mosted likely to no-fault in 1990, which was to try to obtain it far from obligation.

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Howe says "vicarious responsibility is essential, you can not dump it. For the leasing firms, it would certainly be the greatest joke of all. Due to the fact that it would suggest the companies that are generating income off this would certainly be held to a reduced standard than me if I provide my auto to my sibling." Other subjects on IBC's laundry listing of legal reforms consist of forbiding gross-up for earnings tax obligation and also requiring that the courts order structured settlements in all instances where the plaintiff has future treatment or future earnings losses.

One area not mentioned in IBC records, but still of issue to huge insurance coverage companies is course action suits, according to Sami. "These suits are the one area that might produce major havoc," he states. "The cost of protection is a significant worry as well as you can spend a great deal of time and also cash in just combating a qualification situation.

" We assume this will certainly go a lengthy method towards boosting performance in the tort system." He notes that in districts like Alberta, there are available solutions, such as the awarding of "double prices' against plaintiffs for frivolous claims. For Gunnell, the whole procedure of tort reform is long overdue here.

" I utilized to think we were years behind the U.S. in regards to settlements. Currently, I assume we are right up there. We have to start relocating from discussing it to doing something about it." Howe suggests that lawsuits in the U.S. is a "whole various globe." The supposed reforms, like caps on non-economic problems, already exist in Canada.

Torts – Nature Of Tort Law And Liability

The bottom line is that if the innocent target doesn't obtain full settlement, we have actually just abandoned Magna Carta as well as hundreds of years of law," he describes. Bundus claims the existing tort reform propositions are simply that proposals which can form part of an organized lobby to legislators. At this stage, however, it is unclear which group, or whether a coalition of groups, will lead the cost on tort reform.

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That implies lobbying for tort reform, if as well as when it comes, will require to be coordinated with numerous lawyer generals. "Tort reform will have to be done on a province by province basis," Bundus claims. "Ideally, there will certainly be some receptive provinces and this will certainly enable the sector to show that the experiment can function. Neinstein Personal Injury Lawyers.

The checklist pain and also enduring insurance claims near the end, since it is so difficult to sue for discomfort and also suffering in Ontario provided the present state of the regulation. Discomfort as well as experiencing cases are described as "tort" insurance claims at legislation. Obtain utilized to the term. Tort claims are implied to compensate you for your pain and suffering (basic damages), previous and also future loss of income, loss of affordable benefit in the workplace, future treatment expenses not covered by mishap benefits, loss of satisfaction of life, special damages like your out-of-pocket costs, worsened damages, punitive problems, and also any kind of various other problems which you endured as a result of your automobile mishap.

In Canada, we do not have such big honors for discomfort and suffering. The reason is that in Canada, there is a cap on problems for pain and also suffering claims. This cap was set by the High court in a series of situations called "the trilogy". Problems for pain and also suffering are capped at around $317,000.

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The maximum honor for problems for discomfort and suffering are granted to an individual with extreme pain and suffering and also extreme injuries such as loss of limb, paraplegia as well as a mind injury. It is very important for all crash victims to comprehend exactly how damages function for their tort claim, so they have a reasonable expectation of what their prospective award might be.

Individuals get these figures from buddies, family, consultants, or things they see on television. There is absolutely nothing even more deadly to a situation than a crash sufferer with a fixed number in their head which is based on impractical expectations instead of the law and also truths about their instance.

IMAGE: Mike Gifford (CC) June 15, 2015 The Canadian Charter of Legal Rights as well as Freedoms assurances the right to "liberty of thought, idea, opinion and expression, consisting of liberty of the press as well as various other media of interaction", but this right, along with all legal rights ensured by The Charter, is not outright. Some kinds of cost-free expression in Canada are criminal offenses, such as perjury, dispersing salacious material, and dislike speech.

Nevertheless, some limits on complimentary expression in Canada have nothing to do with federal government restrictions or the right to free expression as specified in the Charter. One such limitation is the civil tort of vilification. Libel regulation is not about protecting satisfaction; it is about shielding credibility and offering restitution to people whose track records have actually been incorrectly damaged.

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Tort regulation surrounding vilification regulation does not directly suppress your right to complimentary expression; it is not illegal per se. Instead, defamation is usually concerning making restitution to individuals that have actually been harmed by your speech. You can still say whatever you want, but you might need to pay for it (and you might have to pay a whole lot).

In Ontario, as an example, regulation on libel is discovered in the. Vilification can be subdivided right into libel and aspersion: character assassination with an irreversible record, such as an e-mail, a radio or TELEVISION broadcast, a paper, a web site uploading, and so on libel without any long-term document, such as a talked declaration and even a hand motion.

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Joint Tortfeasor

This article is written by Namrata Kandankovi, student of Symbiosis Law School Pune. The author of this article has discussed in brief, various aspects regarding joint tortfeasors, modification of law with respect to joint tortfeasor and applicability of the law of torts.

Definition

When a tort is committed by several persons, all the persons involved in it become joint tortfeasor. In addition to this, all persons will be responsible for the same tort and will be deemed to be joint wrongdoers in the eyes of law.

Now, at this point, it becomes important for one to understand that in order to establish the wrong committed by joint tortfeasors, there must be some connection between the act of one alleged tortfeasor to that of the other.

Sargent L.J words regarding this can be quoted as follows – “There must be a concurrence in the act or acts causing damage, and not merely a coincidence of separate acts, which, by their conjoined effect, cause damage.”

For Example– In Palghat Coimbatore Transport Co. V. Narayana– There was a collision between two buses which resulted in the death of one of the passengers, further in a suit filed by the representatives of the deceased under Fatal Accidents Act, it was held that the owners of both the bus companies would be liable.

With regard to joint tortfeasors, the following three prepositions can be taken into consideration-

Circumstances under which joint liability arises

Agency- The concept of agency provides that, whenever one person employes, authorises or procures another person to commit a tort, the law takes into account the wrong of both of them and eventually, both the principal and the agent become jointly and individually responsible for the actions of the agent.

Arneil v. Paterson – In the aforementioned case, two dogs at a concert which belonged to different owners, attacked a flock of sheep and injured many of them. When a suit was brought against the owners of the dogs, one of them put forth a claim that he would be liable only for one-half. But it was finally held that both the owners will be liable for the whole damage, as each of the dogs occasioned the whole of the damage.

Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is assigned on a person who did not commit the wrong but has a superior legal relation with the person who actually committed the wrong. The situations of vicarious liability mostly arise in case of employee and employer relations. In the case of vicarious liability, both, the person who commits a tort and the person vicariously liable for the wrong are deemed to be joint tortfeasors.

Joint or common action- In the law of torts two or more persons are said to be joint tortfeasors if they act jointly in the tort or a same suit of action is followed if one defendant has incited another to commit the tort.

There are two principles involved in joint or common action which will be discussed under

Accessory Liability– In the context of English common law, liability for participating in another’s tort is considered to be a form of joint liability, but at the same time, it is ambiguous whether procurement is a concept which is different from that of a common design or if it is a subset of it. Considering it on a whole it can be concluded that the law favours procurement as a subset of law rather than taking it as a form of common design.

In support of this, a judgment was given in the case of  CBS Songs Ltd v Amstrad Consumer Electronics plc whereby it was held that procurer is a joint tortfeasor only if he shares the design of the primary tortfeasor.

Tort of Common Design–  In the case of Fish & Fish Ltd v Sea Shepherd UK, it was taken into account that in order to establish accessory liability on a person, two elements are necessary to be proved, which are, one- the defendant acted in a particular way and this was the reason which led to the occurrence of the tort by the main actor. Two, the main actor would have further done so in pursuance of a joint plan or “Common Design”. There is no established test for determining the common liability and it varies from one case to another depending upon the facts and circumstances of the case.

The nature of joint tortfeasor’s liability

There are various circumstances involved when it comes to liability of joint tortfeasors:

The nature of liability of joint tortfeasor always acts in the advantage of the plaintiff or the injured party and lays down numerous provisions by the way of which justice can be served to the plaintiff. It is always at the discretion of the injured party or the plaintiff to either sue one of the many joint tortfeasors for the whole damage caused to him or to make all the tortfeasors liable for all the damage incurred by him.

Defendants who are jointly liable for a tort have an inherent liability on them up to the full amount of the judgment awarded to the plaintiff. A successful plaintiff, on the other hand, has an option of either collect the entire amount from one defendant or to take it from all of them collectively. Illustration- If there are two defendants A and B, and in an aforesaid suit against them, Defendant A is found to be at 60% fault and defendant B is found to be at 40% fault. Now if C is the plaintiff in this case, C has the discretion to either collect the entire amount from A or B or to collect the amount in regard to each person’s liability.

The second aspect dealing with the nature of liability of tortfeasors throws light on the release of tortfeasors. It formulates that the release of one tortfeasor would result in the release of all tortfeasors. The reason behind such nature of liability is the “Cause of Action”. The cause of action in torts is always one and indivisible, and release of one person from that cause of action results in the release of all joint tortfeasors who were held liable. Furthermore, the intention of the parties has no role to play in the release of the tortfeasors. Further, a mere agreement to not to sue a particular wrongdoer has a completely different perspective and can be variedly different from the release of the tortfeasors.

The third aspect draws the attention of the plaintiff or the injured party towards the bar placed on him in regard to the “Future Course of Action”. Put in simple terms, the third aspect can be explained as follows – When a judgment is passed or obtained against one or more tortfeasors, it would place a bar on the injured party to further initiate any suit against any particular tortfeasor or all of the tortfeasors collectively.

However, this was the situation earlier, the recent developments in the area of joint tortfeasor have come up with a view that judgment obtained against one tortfeasor is no bar to initiate an action against another tortfeasor for the same cause of action. But at the same time, it is a well-established principle that the sum recoverable through the way of damages cannot exceed the amount of damages which was awarded by the first judgment. This particular modification in the law of torts was brought by The Law Reform (Married Women and Tortfeasors) Act 1935.

One of the loopholes involved in the case of joint tortfeasor is that it can make a defendant end up paying damages which are disproportionate to his liability in the suit. Such instances come to light in case of insured and uninsured defendants. If any one of the defendants in the suit has a deeper pocket or larger insurance policy then he may be under an obligation to pay most of the damages even when he was not a primary defendant.

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Contribution between joint tortfeasors

This section of the article would carry forth the discussion on the loophole involved in the liability between the joint tortfeasor, whereby one of the defendants may be forced to pay the whole share, even if he has a secondary involvement in the tort.

The concept of contribution between the joint tortfeasor lays down that a tortfeasor who is forced to pay the disproportionate amount to the injured party has no right to claim such a share from other or other parties.

This particular principle is based on the maxim ‘Ex Turpi Causa Non Oritur Actio’, this maxim lays down that, No action arises from an illegal cause. More detailed meaning of the maxim can be quoted in the following manner- A person who suffers damage at the hands of another, but in addition, he himself has acted in an unconscionable manner should be deprived of any remedy which the law would have otherwise provided.

In an English case, Everet v. Williams – Where the plaintiff and the defendants were partners in highway robbing and by the way of it collected 2000 pounds, and then when the plaintiff filed a suit for the share of the sum, the court dismissed the suit on the grounds of it being Scandalous and Impertinent.     

Merryweather v. Nixon

This was a landmark where it was laid down that, in common law, a wrongdoer cannot maintain an action for contribution against another wrongdoer, even when the one seeking contribution would have satisfied the full claim of damages. And this rule is popularly known as Merryweather v. Nixon Rule.

The facts of this case involved the following – M and N conjointly destroyed the machinery which belonged to R, eventually, R brought an action against both and obtained a claim of 840 pounds by way of the judgment delivered in his favour. The whole amount was levied on M, who again sought contribution from N for half of the amount by filing a suit against him. The court laid down that M could not recover.

The rule of Merryweather v. Nixon existed and had wide applicability but it existed with several exceptions to it and these exceptions will be discussed in detail in the forthcoming segment of the article.

Exceptions to the rule in Merryweather v. Nixon with regard to contribution between wrong-doers

The application of the well-established rule was later limited to the course of time where the cases specifically revealed willful and conscious wrongdoing by the defendant, and the exceptions regarding this rule are listed as under:

The rule was not applicable in cases which involved negligence or where there was an unintentional breach of law.

Not applicable in cases of Indemnity, where one man employed another to do certain acts, provided the acts were not unlawful in themselves by the way of their existence, for the purpose of asserting a right.

Not applicable where there exists a right of contribution between the directors or promoters of a company who are jointly liable for the misrepresentation contained in the prospectus.  This aspect is covered under section 62 of Companies Act 1956.

Taking into consideration admiralty action in case of collision, it can be said that, whenever such actions are involved, the damage caused by a vessel by collision with another vessel will be borne equally by both the vessels.

Abolition of the rule in Merryweather v. Nixon

The case of Merryweather v. Nixon was decided by the King’s Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. But it later stood abolished by The Law Reform (Married Women and Tortfeasors) Act, 1935. This act provides for the following:

In contrary to the previous law, the tortfeasor can now recover contribution from other tortfeasors who is also liable in respect of the same tort, it may be either jointly or otherwise.

While recovering the amount from the tortfeasor, it is essential to make sure that the amount is just and equitable and in addition to this, it has a regard to the extent of the defendant’s liability to the aforesaid tort.

The court has discretion in any given case to exempt a tortfeasor from the liability to contribute.

Whether the rule in Merryweather v. Nixon applies in India?

Prior to the abolition of the rule of Merryweather v. Nixon, the courts in India had a conflicting opinion regarding the applicability of the rule. There have been numerous cases where the rule of Merryweather v. Nixon was followed in India. It was freely applied by the courts where the parties knew or ought to have known that they were indulged in wrongdoing.

In contradiction to this, the High Courts of Allahabad, Calcutta and Nagpur had stringently held that the rule does not have any applicability in India. The rules laid down and followed by these courts was that a tortfeasor would have every right to recover compensation from the other joint tortfeasor who was also liable for the same tort.

Considering the present scenario, it can be said that the rule in Merryweather v. Nixon, which does not comply with Justice, Equity and Good Conscience, which was further abolished by the court of England and was rightly rejected from being applied in several courts in India.

Conclusion

The article has covered under its ambit, numerous concepts, case laws and provisions related to the concept of the joint tortfeasor. It showcases the rigid and reasonable use of tort law and through the way of which there can be justice served in the interest of the society. There have been changes and modifications brought in the tort law regarding the liability of joint tortfeasors, in order to make it come in line with the changes evolved in the society over the passage of time. Further, wherever there was wrong being done on the part of the defendant with regard disproportionate to claim of damages by the plaintiff in case of joint tortfeasors, such provisions have been keenly dealt with and there have been modifications made in order to serve and protect the interests of the defendants.

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Guest Post: Data Breach Class Actions in the UK — What Next?

Stephen Reilly

Andrew Jones

Data breach class action lawsuits are already well-established in the United States, but are only developing elsewhere. In the following guest post, Stephen Reilly and Andrew Jones of Beale & Company Solicitors take a look at the possibilities and prospects for data breach class actions in the U.K. A version of this article previously was published as a Beale & Company client alert. I would like to thank Stephen and Andrew for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Stephen and Andrew’s guest post.

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  USA data breach class actions are commonplace. However, the increasing use of class action type Court procedures combined with hungry third party litigation funders means that similar claims are now on the increase on this side of the Atlantic. In this article, we look at the relevant Court procedures and the data breach class actions making their way through the English courts. Businesses and their cyber insurers should take note – we are poised for a material increase in these types of claims.

  Class action procedures in the UK

‘Class actions’ or group litigation enable claimants with similar claims to group together and bring actions collectively against the same defendant(s). There are two main forms of group litigation in England and Wales available for collective data breach litigation:

  1)            Group Litigation Orders; and

2)            Representative Actions.

  1) Group Litigation Order (“GLO”)

A GLO is an order by the Court made under CPR 19.11 to provide for the collective management of numerous claims that give rise to “common or related issues of fact or law”. It should be borne in mind that each claim remains substantively separate and the GLO is only a mechanism to manage all those individual claims together for reasons of efficiency. Each claimant pleads individual facts and any damages payable are tailored accordingly. One of the best known GLOs was the RBS Rights Issue Litigation for securities related claims against RBS and its former directors in respect of the £12bn rights issue where the various claimant groups recovered over £800m in damages.

  GLOs operate on an “opt-in” basis, whereby claimants are not included in the action unless they take positive steps to join by entering details of their claim into a “Group Register” which is established once the GLO has been made. The proposed claim is usually advertised to alert potential claimants and (for efficient case management) the Court will often direct a cut-off date after which claimants cannot be entered onto the Group Register without the court’s permission. If the limitation period has not expired, claimants may still be able to issue their own individual claims later outside of the GLO.

  The rules allow a single Claim Form to be used and usually the Court will order the filing of group Particulars of Claim containing general allegations as well as a separate schedule setting out the facts relied upon and the specifics of damage suffered for each claimant. Up until the point that individual issues need to be determined, the defendant may only need to plead a defence to the group Particulars of Claim. Depending on the Court’s view as to how to manage the litigation best, there may then be determination of preliminary issues and/or a trial of the lead or test claims in order to best deal with all the issues being contested. At that point, the defendant may well need to plead a defence in respect of more specific issues that arise in those particular claims. Any judgment on a GLO issue will be binding on all other claims on the Group Register.

  Specific GLO costs rules apply which ring-fence a claimant’s costs liability and do not leave it exposed to all the defendant’s costs. Each claimant is only liable for a several share of the common costs of pursuing the GLO and a several and equal share of any costs awarded to the defendant if the claim does not succeed.

  HM Courts & Tribunals Service figures indicate that since their introduction in 2000 only 108 GLOs have been issued.

  2) Representative Actions

Representative Actions under CPR 19.6 are an alternative procedure to GLOs and may be made by numerous claimants who have the “same interest” in a claim i.e. they must all have a common grievance and the relief sought must be the same for all claimants. The claim is brought by a representative of all of the claimants who prosecutes the action on both their behalf and on behalf of the entire class. There is no need to list the class members but it must be possible to say of any particular person whether or not they qualify for membership of the represented class by virtue of them having “the same interest”. Any judgment or order given is binding on all class members represented.

  Unlike GLOs and more like their American equivalents, Representative Actions are “opt-out” and so all persons falling into the represented class form part of the litigation unless they take positive steps to remove themselves.

  The Representative Action “same interest” requirements are a more restrictive test than the test of “common or related issues of fact or law” for GLOs. In addition, the Court has a wide discretion to permit (or not) such claims to proceed which in part explains why such class actions are not as prevalent here as in the USA.

  Funding of class actions

In England and Wales, it is permissible for a funder, subject to certain restrictions, to fund litigation in return for a share of the proceeds received by a party. Litigation funding has developed substantially in recent years and class actions represent a potentially lucrative area for funders.

  While CFAs and other funding routes are potentially available, the reality is that these types of class actions are unlikely to proceed without third party litigation funders. ATE insurance policies are also usually obtained to meet the costs of a successful defendant.

  Class actions and causes of action for data breaches

The common issues and interests involved in mass data breaches (where the data of a large number of data subjects is compromised simultaneously, often via a cyber-attack), therefore potentially lend themselves well to class actions, either via GLOs or Representative Actions depending on which procedure is best suited to the key liability and damage issues in play.

  For post-25 May 2018 data breaches, Article 82 of the General Data Protection Regulation (“GDPR”) (given effect in England and Wales by s.168 Data Protection Act (“DPA”) 2018), provides a right to claim compensation for individuals who have suffered “material or non-material damage” as a result of infringement of the GDPR. “Non-material damage” specifically includes “distress”. Recital 85 to the GDPR lists “loss of control” over personal data as another example of the kind of damage that might be caused as a result of a data breach.

  The predecessor to these provisions was s.13 of DPA 1998. The DPA 1998 still applies to claims where the data breach was prior to 25 May 2018. The DPA 1998 also enables individuals to claim compensation for pecuniary loss and distress. In the Lloyd v Google LLC case (see further below) the Court of Appeal held that such damages are also in principle capable of being awarded for loss of control of data, even if there is no pecuniary loss and no distress.

  Whilst not yet a flood, there has been a steady trickle of cyber-related class actions brought before the courts in the last 24 months. This is in part explained by the fact that important legal issues about how such claims can proceed are still being shaped and established.  Up until the Court of Appeal decision in Lloyd v Google LLC, many of these key legal issues had still not been fully considered.  The Lloyd v Google LLC case (subject to appeal to be heard by the Supreme Court in late 2020/early 2021) has, however, now moved these issues on, in a potentially pro-claimant manner.

  We consider below four of the main cyber-related claims in which claimants have sought to take advantage of these group litigation procedures in the UK: Morrisons, Lloyd, Equifax and British Airways and the implications of these cases for businesses and their cyber insurers.

  Various Claimants v VM Morrisons Supermarkets plc

Mr Skelton, a Morrisons employee with a grudge, downloaded payroll data containing personal details of 100,000 Morrisons’ employees (such as names, addresses, NI numbers, salary details and dates of birth), onto a personal USB stick and uploaded this data onto a public file-sharing website. A CD containing a copy of the data was also sent to three newspapers in the UK – although they did not publish the information. Mr Skelton was sent to jail for 8 years for his criminal actions and Morrisons spent over £2m cleaning up the breach.

  A GLO was launched, with approximately 9,000 employees  issuing a claim against Morrisons for compensation for (i) breach of statutory duty under s.13 of the DPA 1998, and (ii) common law misuse of private information and breach of confidence. (Note that in using the GLO procedure, the approx. 90,000 other potential claimants did not bring claims.) While these breaches were directly committed by Mr Skelton, the Claimants alleged that Morrisons had vicarious liability for his actions.

  On 1 April 2020, the Supreme Court found that, on the facts and as he was embarked upon a personal vendetta, Mr Skelton’s wrongful conduct was not sufficiently connected with the acts that he was authorised to do in his employment so as to justify a finding of vicarious liability on Morrisons (see our article on this case, here). Crucially, however, the Court found that it was possible (depending on the facts) for an employer to have vicarious liability under (i) the DPA 1998 (and it will follow, the GDPR and DPA 2018) and (ii) the alleged common law torts of misuse of private information and breach of confidence – even where (as here) the business had done all it reasonably could to protect its data. This may yet prove to be an important avenue of recovery for data breach claimants going forward depending on the facts of any case.

  Richard Lloyd v Google LLC

Richard Lloyd, a consumer champion and former “Which?” editor, issued a Representative Action against Google claiming damages on behalf of a class of an estimated 4 million iPhone users in relation to the “Safari Workaround”. In essence, this allowed Google to track the internet activity of these users without their consent and sell their browser generated information (“BGI”) without their consent to third party advertisers.

  As in the Morrisons case, Mr Lloyd claimed compensation for each class member under s.13 DPA 1998 for alleged breaches of the Act. In an effort to come within the “same interest” test, however, the claim was restricted to seeking damages for the “loss of control” of data of each class member. The claim did not seek pecuniary or distress loss, recognising that such damage claims would have varied between class members and so prevented use of the CPR 19.6 Representative Action procedure.

  The claim is said to be financed by £15.5 million of support from litigation funder Therium, with the Claimants also holding a £12 million ATE insurance policy.

  The High Court initially dismissed the claim on the grounds that (i) the individuals had not suffered recoverable “damage” i.e. pecuniary loss or distress under s.13 of DPA 1998 (ii) the class members did not share the necessary “same interest” for a Representative Action and (iii) the Court would have in any event exercised its discretion to disallow the use of the Representative Action procedure where the case was “officious litigation, embarked upon on behalf of individuals who have not authorised it, and have shown no interest in seeking any remedy for, or even complaining about, the alleged breaches”.

  In October 2019, however, the Court of Appeal overturned the High Court on all issues in a ground-breaking decision that found that:

  (i)            contrary to the previous orthodox understanding of “damage” as required under s.13 of DPA 1998,a claimant could be compensated for “loss of control” of her data under s13 of the DPA 1998 without having to evidence simultaneous pecuniary loss or distress. It had been common ground between the parties (and the Court of Appeal agreed), however, that if the data breach infringement was trivial or de minimis the Court would be entitled to refuse to make an award of damages;

(ii)           based on the “lowest denominator” approach of the claim to seek damages for loss of control only, the estimated 4 million affected individuals did have the “same interest” to allow the Representative Action to proceed –  while class members may have had different amounts and differing sensitivity of data harvested by Google, all the claimants had had their BGI taken by Google without their consent, in sufficiently the same circumstances, during the same period and the claim was not seeking to rely on any personal circumstances of individual class members; and

(iii)          this was not “officious litigation”.  Preventing the claim from proceeding would deprive the Claimants of any remedy where there had been a sustained and arguably deliberate harvesting of the class member’s data.

In March 2020, Google were granted permission to appeal to the Supreme Court on all three key issues. A hearing is now expected in 2021.

  Atkinson v Equifax Ltd

In 2017, Equifax Ltd’s American parent company, Equifax Inc, suffered a data breach following a hack which allegedly compromised personal information including credit card details of 143 million individuals, including 15 million UK residents. It was reported that Equifax Inc had agreed to pay up to $700m as part of a settlement in the US. In September 2018, the ICO issued Equifax Ltd with a £500,000 fine for failing to protect the personal information of the UK residents.

  Within days of the above favourable Court of Appeal decision in Lloyd v Google, Mr Atkinson sought to bring a Representative Action against Equifax Ltd on behalf of the class of 15m UK claimants. As in the Google case, Mr Atkinson sought to claim compensation for “loss of control” of data without any pecuniary loss or distress claim, and for misuse of private information arguing that Equifax failed to maintain appropriate security around the data affected in the attack. Mr Atkinson’s lawyers said they estimated the total value of the claim to be £100 million.

  However, in April, it was reported that Mr Atkinson had decided to withdraw the claim following Equifax’s submission of its Defence, which challenged the Court of Appeal’s decision in Lloyd v Google and the application of the decision in that case to a cyber-attack case. Reports suggest that Equifax’s Defence argued that (i) the lead claimant could have had no expectation of privacy over the information that was affected because the affected data (Atkinson’s name, date of birth and landline phone number) was in any event listed in public sources (ii) the claimant “did not exert any meaningful control over that data” –  data which had in the first place been gathered by Equifax from sources other than the subjects themselves and (iii) the claim does not surpass the required impact/damage threshold of “trivial”.

  Equifax are now seeking to recover the costs they have incurred in responding to the action, in what could be a harsh lesson for those funding the litigation.

  Various Claimants v British Airways PLC

British Airways fell victim to a “formjacking” attack involving user traffic being diverted from the British Airways website to a fraudulent site. Through this false site, the personal data (including BA login details, credit card information, address, email address and travel booking information) of approximately 500,000 users was compromised. An extensive investigation by the ICO resulted in the issue of a notice of intention to fine British Airways £183m (equivalent to 1.5% of BA’s 2017 turnover) for GDPR infringements – albeit the time for the ICO to confirm the fine has recently been extended to allow further time for British Airways’ representations.

  In October 2019, affected British Airways customers were granted permission by the High Court to bring claims against the company as part of a GLO. A deadline of January 2021 has been set for individuals to opt-in to the Group Register for the GLO, following which the case will proceed. Several law firms appear to be advertising online for potential claimants offering, “no win-no fee” and ATE backed GLO litigation.

  The future for cyber-related class actions

The future of class action data breach claims in the English Courts remains, to some extent, uncertain. However, data breach claims are now already listed in the Courts, which will map out the boundaries of previously untested legal and procedural issues which are key to the future of mass data breach claims in England and Wales.

  If the Supreme Court in Lloyd v Google LLC confirms the Court of Appeal’s decision, then we can expect to see a material increase in these types of claims going forward.

  Some of the important questions that remain to be answered include the following:

  Whether the more pro-claimant “same interest” test for Representative Actions will be upheld by the Supreme Court. If so, the Representative Actions procedure has the potential to support much larger claims for businesses and their insurers to face going forward, given the “opt-out” basis.

  What is the de minimis threshold of seriousness of data breach to overcome so that damages will be awarded? There is still no clear test with clear factors to assist potential claimants. In Lloyd v Google LLC the Court of Appeal was clearly influenced by the period of time the data harvesting had been going on for, the fact Google was monetising such data and that such harvesting was unknown to the claimants at the time. However, what factors carry what weight in measuring the de minimis threshold still need to be clarified. The potentially relevant factors include those issues considered in Lloyd v Google LLC, the sensitivity of the personal data involved and the impact on the individuals concerned both financially and in terms of possible distress.

  What monetary value do data breach claims have? Whilst direct financial losses are easier to quantify, these are not common in data breach claims. Most mass data breach claims are for damages arising from “distress” and “loss of control” of data and the scale of damages for related GDPR/DPA 2018 breaches is still unknown. The GDPR/DPA 2018 do not specify a sum or provide guidance for the level of any awards to be expected. Will it be £100 each or £5,000 each for millions of claimants in a large-scale data breach? Other than a few notable exceptions, the awards for “distress” under DPA 1998 have generally been modest (such as £750 in Halliday v Creation Consumer Finance [2013] EWCA Civ 333), although the claimants in Morrisons were seeking upwards of several thousand pounds each which would have equated to total compensation of £20m+. In Lloyd v Google LLC, damages of circa £750 per claimant (circa £3billion for the 4m class members) were apparently referenced in pre-action correspondence from the claimants. Many commentators expect that awards under GDPR/DPA 2018 will be higher than under DPA 1998 in any event and will therefore lead to larger exposure on claims.

    We anticipate that the use of group litigation in data breach claims will continue to rise in the coming years. The next large-scale class actions on the immediate horizon appear to be Virgin Media (following personal details of up to 900,000 customers being exposed after hackers accessed customer information stored on an incorrectly configured database) and Easyjet  (full names, email addresses and travel data that included departure and arrival dates were hacked- said by claimant lawyers to pose security risks to individuals as well as being a gross invasion of privacy). The ICO are investigating both breaches and claimant lawyers are recruiting claimants and are getting headlines by suggesting compensation of up to £5,000 per individual.

  The (i) greater public awareness of data rights related potential compensation (ii) growth of litigation funding for class actions (iii) development of a UK specialist bar dealing with mass data breach claims and (iv) the Court’s increasingly accommodative interpretation of class action type Court procedures, are a dangerous mix of ingredients and will create an increasingly risky and volatile environment for data holding businesses and their cyber insurers.

  For further information please contact:

  Stephen Reilly

Partner

+44 (0) 20 7469 0419

s.reilly@beale-law.com

  Andrew Jones

Senior Associate

+44 (0) 20 7469 0420

ag.jones @beale-law.com

Guest Post: Data Breach Class Actions in the UK — What Next? published first on http://simonconsultancypage.tumblr.com/

[ia21133melly]

Tax and Self Employment Report

My career after qualifying is to be an art therapist. Typical working hours are 37 to 39, thought they are variable and will include a lot of paperwork/reports and evening work. The average starting salary is £30,401. The jobs are freelance of self-employed. Settings include hospitals, education settings and personal buildings.

Before starting anything, I will need to set up my branding, identity and business plan. This will help me decide if I need to take out a loan beforehand to set-up or if it will be enough to start from a small self-investment. It will also make sure I have thought all things through and can survive the first two years (when the average new business fails). It should be expected that I will not make profit in the first year as the average earns profit during the 18-24 month. This means I need to make sure I am able to pay the house bills and other personal payments.  

Going down the self-employed art therapist, gives me 2 main options. I work from my own home or I rent/buy out a space to work there. Alternatively, I could take a contracted route (freelance) and travel to where I am required. Because the subjects of the job, I will be opting to work from a rented office space. Usually there are counselling offices available throughout the UK. I will need to provide my own equipment. This includes a laptop or PC to type up my notes and a safe and secure back-up set-up.

Before I go about finding a suitable location for my business or even register myself as a business owner, I am required to have a few things in order. First, I will need to sign up for a DBS check. There are two options, an annual membership which will allow me to start work right away at any placements/business I go too. Or a one-off DBS which is only covered at the location I am working at. Whichever option I choose it is required I have it done every 3 years.  

I will need to register with the Health and Care Professions Council (HCPC). Failing this I could face a fine of £5,000. I will then need to make sure I have registered for my The British Association of Art Therapists (BAAT). Although this isn’t essential it does improve trust and quality. I also get access to a range of perks such as cash back rewards, discount on books, access to the research library and can further my training at a discounted rate.

Additional requirements I will need is a bare minimal of level 3 in British sign language. This is a minimum requirement by the professional industry to be able to work with D/deaf clients. Ideally, I’d be much higher but as I am deaf myself, I am unable to get higher levels as they are aimed at interpreters. I can however submerge myself within the Deaf community. A bonus to this will be networking.

It is expected of me to keep a record of my business’s sales and expenses, send self-assessment tax returns each year and pay income tax on profits and class 2/4 national insurance. If my turnover is £85,000 or more I will be required to register for VAT. Having an accounting method will support this and is something I will be required to do solo or hire external for. If my income is £150,000 or less I can use cash basis reporting. I only record income or expenses when the money is received or a bill is paid. By doing this I won’t need to pay income tax on anything I have not yet been paid. The standard tax-free personal allowance is £12,500. This means I won’t need to pay any income tax until I am earning more. This changes if I am married and claim marriage allowance. I must also continue to pay my National Insurance contribution (NICs) if my business begins to make more than £6,365 a year. The flat rate is currently £3 a week. This is along side my income tax. If I earn £8,631 or more I will then have to pay the class 4 NICs which is 9% on the profit and 2% after. This can be paid at the same time as my income tax and class 2 NICs. Using the calculator online and creating a made-up annual income using the bare minimal of the average art therapist income, which is (37 hours @ £40 per hour (1,480) x 4 weeks = (5,920) x a year12 = 71,040. I would take home 50,824 a year after tax and NIC. Within a year I would have paid 15,916 for income tax and 156 in class 2 NIC and 4,143 in class 4 NIC.  

I will need insurance to protect myself and others in the event of incidents, accidents and emergencies. My trade description falls under “holistic therapist”. Salon Gold offer a package designed just for art therapist. It includes public liability, product liability, malpractice cover and financial loss. Additional add on include legal expense, stock/equipment, money cover, personal accident and employer’s liability.

Finding a building comes with its own separate task and legal requirements, depending on if I rent or buy my building. I have been saving up with the intention to buy a property to turn into a joint art recovery centre and art community. A friend wants to do a similar thing so there is talk of potentially working together (which brings in more legal requirements and partnership agreements). When it comes to renting, I will need to find a suitable place. This requires me to think like my audience and use my personas. Considering accessibility, travel, parking and lighting. I will need to carry out a health and safety risk assessment. This is to remove any hazards I may encounter. In terms of the building itself these are things like fire safety, electrical equipment, gas safety (if there is any) and deal with any asbestos. For inside the building and a working environment I will need to con sider temperature, space/ventilation/lighting, toilet and washing, safe equipment and drinking water. There is a downloadable file on gov.uk called “Workplace health, safety and welfare: a short guide” which has been written by the health and safety executives (HSE). Not mentioned here is reasonable adjustments being made. This can be done through “access to work”. It is crucial that I follow these health and safety rules as I leave myself open to be prosecuted under the “Health and Safety at Work etc. Act1974”. I also want to be a decent human being and I believe the above requirements are a bare minimum, if that. The HSE and my local council will be responsible for making sure I am following the law. Other requirements are much the same as renting a home property. I am to pay my monthly rent, instead of council tax I am to pay something called “business rates”. Rate relief are available for business rates. I am to pay for utility bills. If I wish to have the TV or/and a radio in my waiting room or at my office I will require a TV license or/and a license to play music (two type are required PPL and PRS). This is because the UK law recognises that any music playing in public falls under “public performance”. I will also need to set up a Wi-Fi and phone line. Usually any responsibility not brought up on the lease will be my responsibility. Some offices provide all of the above within an all inclusive monthly fee.

Finally I’ll want to be opening a business account. With my current bank, they would offer me pre-customer benefits such as access to 18 months’ free day-to-day. Non-members get 6 months. I would also be given access to the financial and digital tools for my business. Having a business account means I can keep my personal and business money separate. I will be able to pay myself a wage (when I start to earn enough) and leave the money for the business in the business account. I am also entitled to better protection that you wouldn’t get with a personal account.

The British Association of Art Therapist (BAAT) offer free business advise to those wishing to start self-employment as an art therapist. The recommendations for payment rate from 2014 are:

· Individual art therapy at £40-£60 per hour

· Administration (note writing, meetings, etc.) at £30 per hour

· Group art therapy (1.5 hours face-to-face contact and 30 minutes setting up, clearing up and writing reports or notes): £90 - £110 (per group)

The BAAT expect all members to obey the code of conduct and must:

·maintain their registration by the HCPC;

·adhere to this Code of Ethics and the Principles of Professional Practice and Guidelines for Members;

·undertake supervision in accordance with supervision guidelines;

·hold personal professional indemnity insurance (PII) as stated in the EU directive

·2011/24/EU if this is not provided by an employer’s vicarious responsibility insurance.

·undertake continuing professional development (‘CPD’) as required by both the BAAT and

·the HCPC.  

(Taken directly from the British Association of Art Therapist “Code of Ethics and Principles of Professional Practise for Art Therapist” document.)

After all of this is in place I can now register with HMRC and being my self-employment adventure.

[vincentvelour]

UK businesses should use caution when interpreting Morrisons data breach ruling

UK businesses should use caution when interpreting Morrisons data breach ruling

5/6/2020

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        By Paul Sutton, Vistra

Lawyers for UK grocery chain Wm Morrison Supermarkets heaved a sigh of relief in April after the country’s Supreme Court ruled the company was not liable for a data breach caused by a disgruntled employee. But multinationals would be gravely mistaken to take encouragement from the narrow ruling. Though the UK has split from the European Union, GDPR privacy rules remain in full force there and carry penalties that could swing a wrecking ball at company finances.

The Supreme Court’s decision overturns two lower court rulings that had held Morrisons responsible after an angry employee published sensitive company payroll information on the internet and shared it with newspapers in 2014. The employee was convicted for fraud and disclosing personal information and sentenced to eight years in prison. Nine thousand Morrisons workers sued the company for the breach.

“Vicarious liability” verdict

The high court quickly dismissed the case’s direct liability allegations and turned its attention to the lesser-known standard of “vicarious liability.”

Proving vicarious liability entails demonstrating that an employee acted “in the course of employment,” i.e., in the course of carrying out his duties to the employer. In this case, the employee, who carried a grudge after receiving a disciplinary warning, released the information without company authorization on his home computer. Deliberately harming the employer (and doing so while not at work) contradicts the concept of carrying out one’s duties, the court found, ruling that the company could not be held responsible for the actions precipitated against it.

The importance of the GDPR

There are two important things for companies to note about this ruling. The first is that the ruling deals only with a narrow subset of law concerning the question of indirect liability. The second is that the incident occurred in 2014, four years before GDPR legislation came into effect.

If the breach had occurred later, after the GDPR was in force, Morrisons would have been subjected to an intensive GDPR investigation of its policies and its enforcement of data privacy rules. Any violations that came to light could have received the full force of the law, which can result in fines of up to 20 million euros or 4 percent of revenues, whichever is greater.

Though the UK has officially left the EU, it is in a transition period at least until the end of 2020 to allow for a new trading relationship with the EU to be negotiated. Throughout this period the same trade rules and free movement of goods and services continue to apply in the UK, and the GDPR also remains in full effect. Whatever the outcome of the UK-EU trade talks, it is certain that from 2021 onwards, GDPR requirements will continue to apply throughout the UK, as the GDPR has already been imported into UK national law. Following the transition, it will be known there as the UK GDPR.

UK employers should also bear in mind that — although some have described the Morrisons ruling as “a great result for employers,” — the case went all the way to the Supreme Court and involved thousands of employees seeking damages. Had the ruling gone another way, more of Morrisons’ 100,000 employees might have added claims, with devastating financial and public relations results.

Taking privacy seriously

Since the GDPR came into effect in May 2018, authorities have received an average of 278 personal data breach notifications per day. Though the total amount of fines collected so far — 114 million euros — is much lower than it could be given what the law allows, some legal experts believe that new German guidelines will cause penalties to rise in the future.

Quite a few multinationals have been hit, including Marriott, Uber, Yahoo, Facebook, and British Airways, which received one of the largest fines (183 million pounds) after website visitors were diverted to a fake site where their payment information was stolen. The fine has been deferred twice and could be appealed.

In the end, then, the Morrisons case should serve as a reminder to all organizations with UK operations that — Brexit or no Brexit — the country takes data privacy very seriously. UK employers should review their employee handbooks and training to make sure they comply with all UK GDPR requirements.

In cases involving an employer transferring data outside the UK — for example, to the United States — the employer should also ensure that it fully complies with all GDPR rules relating to cross-border data transfers. Note that data transfers to the U.S usually require membership in the EU-U.S. Privacy Shield Framework or the execution of EU standard or contractual model clauses.

UK employers should also update their policies to convey that their company will not be held responsible for employees’ actions while they are not conducting work business. This will not necessarily absolve an organisation from vicarious liability, but should be done. Other actions may also be necessary to ensure GDPR compliance.

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[kpmgtoday]

UK Data Breach Ruling Clarifies Employers' Vicarious Liability

After supplying the relevant data to KPMG, Skelton, in a deliberate attempt to harm his employer, copied the payroll records of approximately 100,000 ... Delivered by KPMG Today (@KPMG_TO) Read more here Follow @KPMG_TO on Twitter to get latest updates

[valentinopo]

UK: Supreme Court judgment in Morrisons – employer not vicariously liable for data breach

Today the Supreme Court allowed an appeal in Morrisons v Various Claimants1, a significant judgment addressing the extent of an employers’ liability for data breaches maliciously committed by an employee. The Supreme Court held that: The earlier judgments of the High Court and Court of Appeal had misunderstood the principles governing vicarious liability. In particular, from cybrtx https://ift.tt/3bJq7o2 via IFTTT

[cassidygallagherg]

UK: Supreme Court judgment in Morrisons – employer not vicariously liable for data breach

Today the Supreme Court allowed an appeal in Morrisons v Various Claimants1, a significant judgment addressing the extent of an employers’ liability for data breaches maliciously committed by an employee. The Supreme Court held that: The earlier judgments of the High Court and Court of Appeal had misunderstood the principles governing vicarious liability. In particular, from cybrtx https://ift.tt/3bJq7o2 via IFTTT

[angrycollectordaze-me-blog]

Paper代写：Judge's disciplinary action

本篇paper代写- Judge's disciplinary action讨论了法官惩戒事由。法官惩戒事由的实体范畴是指法官应当在什么情况下受到惩戒的问题。对此，世界各法治国家均表现出了对法官惩戒事由的重视，出于共同的制度愿景，结合自身司法传统、法治观念、法官职业化程度等司法条件的差异性，在法官惩戒事由的确定上形成了行为到结果和法内到法外两种不同的模式。本篇paper代写由51due代写平台整理，供大家参考阅读。

The substantive category of judge's disciplinary cause refers to the issue under which judge should be punished. To this, the world each country under the rule of law are showed to the attention of the judges disciplinary proceedings, for a common vision system, combined with its own legal tradition, the concept of the rule of law, the judge professionalism, the difference of the judicial conditions, such as on the determination of the judge disciplinary proceedings formed "behavior - result" and "outside the law - in" two kinds of different patterns.

The behavior-outcome model refers to the determination of judge's disciplinary causes based on judge's behavior and judgment results, which are respectively incorporated into two sets of systems and adopted different identification standards. Some countries only include behaviors as disciplinary causes, such as the United Kingdom and the United States, which can be called the single-track system of disciplinary causes of judges. Some countries put the two into disciplinary causes respectively, such as Germany, which can be called the dual-track system of disciplinary causes for judges.

The monorail system of judge's disciplinary cause refers to the mode of imputation that only includes judge's behavior into disciplinary cause and has a judgment standard for judge's improper behavior, and at the same time completely exempts judge's error from liability, which is typical of common law countries. The United States has two sets of judge punishment systems at the federal and state levels. However, except for some crimes that constitute crimes, the standard of "improper conduct" stipulated in the model code of judicial conduct formulated by the American bar association is adopted for the purposes of judicial punishment, that is, all the activities of a judge must avoid improper and seemingly improper. In the judgment of misconduct, the standard of "credibility" is adopted, that is, whenever a judge's behavior impairs the public's trust in judges and confidence in judicial justice, no matter when and where such behavior takes place, no matter how large or small, it will all fall into the category of violation of professional discipline and should be punished. The ruling is a disciplinary exclusion zone for U.S. judges, meaning they are not punished for substantive issues related to the ruling. Similar to the United States, the issues that can be investigated by the British judicial conduct investigation office mainly focus on various improper behaviors of judges, while those that cannot be investigated focus on substantive issues related to the results of judges 4. It can be seen that the UK also excludes substantive issues from the disciplinary causes of judges, and only includes judges' behaviors into the disciplinary causes and adopts "public trust" as the judgment standard of misconduct.

America and Britain is the birthplace of the modern concept of rule of law, the judicial system is based on a relatively ideal condition, the judge retribution for behavior change is the inevitable outcome of the modern rule of law concept extension under, such as the principle of judicial independence, judge professionalism, concept of due process and so on all has become the consensus of the country under the rule of law concept, but in Anglo-American countries relatively is attaining the unity of theory and practice.

Judicial independence plays an important role in the judicial system of Anglo-American law system. Professor geweibao put forward a thinking framework when thinking about the contradiction between independence and responsibility: "since experience tells us that judicial independence is absolutely necessary but relatively fragile, it is right to insist on independence as the starting point and regard all appropriate forms of accountability system as the necessary limitation of the independence principle. The most important words are "starting with independence" and "necessary". Entity referee results if the case will be affect the vital interests of the judge whether to be held accountable, judge the heart that had been injected with the process of the law to other factors and damaged the judge independent basic status, the judge has formed the verdict will judging through outside the program again, this is considered to the judge's discretion to review, serious threat to the independence of the judge. The erosion of the independent exercise of the judicial power of judges will cause a real and serious crisis of confidence not only for judges but also for the whole judicial system compared with the occasional error of the judicial entity results. Therefore, all system design should not harm the independent jurisdiction of judges, is to "take independence as the starting point". The judge's behavior involves the most direct feelings of the public, and is also a representation of the judge's own professional integrity, which directly affects the public's trust in judicial justice, and has a more direct, extensive and far-reaching impact on judicial credibility. Therefore, judges should be cautious in their words and actions at all times, and it is "necessary" to punish all judge behaviors that affect judicial credibility.

The formation of the British and American national judges professional group means that its overall quality at a higher level, the public believe that people with higher a liberal education is full of wisdom, legal specialized trained people with excellent legal skills and good professional ethics, thus believe that the judge can shoulder the burden of private rights protection is particularly important. The behavior of a judge is the representation of his inner character. The improper behavior and anomy of a judge indicate his bad character, which means that the foundation of law and the rule of law is shaken, and the judge must face the possibility of being punished. The judges with high overall quality have obtained the public's trust in their professional ability because of their superb legal skills to minimize wrong judgments and use their profound professional skills to create judgments that can stand public examination. When the height of the judges professionalization have the trust of the public on their behavior ability, the inevitable referee mistakes will be for the common good of its behavior should be understanding and forgiving, combined with national special wash the case for this program and the state compensation of the vicarious liability system, make the occasional mistake will not affect the judgement of judicial credibility generally maintained.

In addition, under the influence of the litigant mode, the Anglo-American law system emphasizes the active role of the litigant and his defense lawyer. Comparatively speaking, the judge maintains a relatively neutral position, and only makes the judgment on the basis of listening to the opinions of both sides, showing a passive characteristic. Accordingly, both parties feel that their opinions have been fully expressed and listened to and accepted by the judge, and they have reason to believe that the judge's decision is made on the basis of their own full defense. Therefore, their trust in the verdict depends on procedural matters such as whether their right of defense is limited and whether the neutral status of the judge is affected, that is, whether the judge's behavior conforms to the requirements of due process. If the judge's trial behavior fails to meet or exceeds the requirements of due process, it means that the judge's conduct and integrity will be questioned and the public's trust in the judiciary will be shaken. Then the standard of judicial punishment should be that the judge's misconduct constitutes a violation of due process. "Judicial activities are carried out by certain organizations specially established by the state in accordance with certain procedures, and their credibility is mainly reflected in the specific process. Because the public's understanding and evaluation of the judiciary is mainly completed through the perception of its specific process, as far as judicial judging activities are concerned, it mainly comes from the theatrical effect of judicial trials. Common law countries the independence of the judicature concept entrenched, judges, high degree of professionalism and principles of due process contributed to judge disciplinary proceedings monorail system mode, only the behavior of the judge should be brought into the punishment and the credibility standard to evaluate the behavior, to judge the possibility of miscalculation made by the appeals process as punishment for the area.

The dual-track system of judge disciplinary causes means that not only the misconduct of the judge may be punished, but also the substantive result of the judgment is wrong and the judge may be punished. The two systems adopt different judgment standards. Typical of Germany is the continental law system. The German criminal code prohibits judges from committing two ACTS: accepting money or other bribes, coercing evidence and forging documents; A wrong judgment that brings an innocent person to justice. Both ACTS are considered judicial ACTS that seriously undermine public confidence in the court as an institution of justice. For the latter, however, only those who intentionally commit the crime or whose innocence is caused by gross negligence are sentenced in principle subject to punishment. In the judgment of misconduct, Germany adopts a standard of public trust similar to that of Anglo-American law system countries. As stipulated in its law of judges, "a judge shall not damage his trust in impartiality and independence, whether in or outside the jurisdiction." In Germany, judges have been punished for their intemperate, contemptuous criticism of a prosecutor's or another court's ruling, or for making sweeping statements in judicial opinions about political parties' incompetence or corruption. In terms of the significance of judge's behavior to judicial credibility, Germany and Britain and the United States have a high degree of consensus. Therefore, the punishment of judge's behavior does not include time, place and occasion, but only requires the objective effect that damages judicial credibility.

The disciplinary system of German judges is different from that of British and American countries in that there is no absolute exemption for the case of wrong judgment result, which is caused by the difference of litigation mode between British and American law systems and continental law systems. In contrast to the relatively passive nature of the judge in the U.S. trial process, "the judge carefully studies the dossier the prosecutor hands over, actively questions the defendant and decides on the witness list. German lawyers are relatively passive in court... ". This reflects the civil law countries to judge the role of the main authority model, since the judge has a broader power, the corresponding accountability should be more stringent. This is consistent with the principle of power and responsibility. However, civil law countries, like common law countries, highly believe in the independence of judges as the basis for the survival of the entire judicial system. Judge, therefore, although the Anglo-American countries have more than the absolute dominance, but the process belongs to the core areas of discretion inviolability, still wrong punishment must and judge the result of the referee ability when there is a direct causal relationship between subjective fault into disciplinary reason concerns category, resolutely resist with only the judgement mistakes and punishment to the judge, it is in the protection of judicial independence and to maintain a balance between judicial credibility measure.

At the same time, the strengthening of the role of judges by the litigation mode of civil law countries' authoritativeness makes Germany extremely strict on the quality of judges, and sets a higher admission standard for the selection and appointment of judges, which provides a higher guarantee for the overall quality of judges. In addition to the inviolability of the principle of judicial independence, there are few cases in which judges intentionally or negligently lead to wrongful cases in these countries, and few judges are subject to punishment. Therefore, the case of punishing the judge for the wrong result of the judgment is at most a preventive setting under the mode of authority litigation, which is not often started in practice. Model with the authority of the civil law countries make the judge need to assume more responsibility, and formed the judge disciplinary proceedings will commence, namely misconduct disciplinary USES credibility to the judge standard of objective imputation principle, and the results of the entity's punishment must be asked a judge to have both subjective imputation of has led to judge the result. Although the two models differ in the choice of whether the judgment result should be included in the punishment, they both attach great importance to the fundamental principle of judge independence, take a prudent attitude to the consideration of "error of substantive judgment result", and put forward higher requirements for the judge's behavior both inside and outside the judicial system.

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[lawfultruth]

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now

Francis Kean

In the following guest post, Francis Kean, Executive Director FINEX Willis Towers Watson, take a look at an interesting and arguably surprising recent U.K. judicial decision in which a supermarket chain was held liable for the unauthorized Internet disclosure of its employees’ personal data. Francis has some interesting observations about the decision’s possible implications as well. A version of this article previously was published on the Willis Towers Watson Wire blog (here). I would like to thank Francis for allowing me to publish his article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Francis’s article:

***********************

You would think that if a company was found both by the relevant regulatory authorities and by the courts to have taken all reasonable steps to protect personal data, it would have a complete answer to a data breach claim. Not so. That was the surprising (to some) outcome of a recent Court of Appeal decision claim in a case concerning a well-known UK supermarket chain. The judgment can be found here. The implications of this case for all companies and for the boards which preside over them should not be ignored.

  The Facts 

The facts are stark. One of the supermarket’s senior employees deliberately copied the personal data of nearly 100,000 employees onto a personal USB stick. Some months later (at his own home) he posted all this personal data on a file sharing website. The supermarket was alerted and the website was taken down. The ex-employee was later prosecuted and jailed for 8 years for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998. Some 5,500 of the affected employees then joined group litigation against the supermarket in the UK High Court alleging against it both primary and vicarious liability for: (i) misuse of private information; (ii) breach of confidence; and, (iii) breach of the Data Protection Act. (The case relates to an era before the introduction of GDPR)

  Primary and Vicarious Liability

The Court cleared the company of primary liability on the basis that it had not itself breached any of the data protection principles (except in one respect which was not causative of any loss). The direct claim against it for misuse of private information and breach of confidentiality also failed. By contrast, the Court found the company vicariously liable for all of the criminal actions of its former employee. It was on this limb of the High Court’s decision that the supermarket appealed.

One of the principal grounds of appeal was that because the former employee’s conduct had occurred outside the scope of his employment, the company could not and should not be held liable. The Court of Appeal found that because the employee was specifically entrusted with payroll data, there was a sufficient connection between his authorised tasks and the wrongful acts perpetrated by him. It held that “there was an unbroken thread that linked his work to the disclosure: what happened was a seamless and continuous sequence of events“.

  Public Policy Considerations

The Court of Appeal specifically rejected the public policy based argument run by the supermarket that vicarious liability in similar scenarios imposes a disproportionate burden on supposedly “innocent” employers. It said:

“There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees. We have not been told what the insurance position is in the present case, and of course it cannot affect the result. The fact of a defendant being insured is not a reason for imposing liability, but the availability of insurance is a valid answer to the Doomsday or Armageddon arguments put forward…”(emphasis added)

  Failure to Insure

The obvious public policy consideration behind the doctrine of vicarious liability is to provide a means of compensating innocent victims of corporate activity in circumstances where the company’s employees responsible for the relevant conduct do not have sufficiently deep pockets.  It is interesting that the Court of Appeal’s answer to the countervailing policy consideration that “innocent” companies will be unfairly punished by the application of the principle is (in large part) the assumed availability of adequate and relevant insurance. In principle, both the losses which the supermarket chain suffered and those in respect of which it was being sued are probably insurable under a cyber policy but the question as to the availability and cost of such insurance are more open.

How long will we have to wait before we see  an inventive claimants’ lawyer making the case based on the Court of Appeal’s conclusion that that the negligent failure by a company’s board to take out adequate insurance to protect a company from this form of no fault liability has caused it damage?

  The post Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now appeared first on The D&O Diary.

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now syndicated from https://ronenkurzfeldweb.wordpress.com/

[golicit]

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now

Francis Kean

In the following guest post, Francis Kean, Executive Director FINEX Willis Towers Watson, take a look at an interesting and arguably surprising recent U.K. judicial decision in which a supermarket chain was held liable for the unauthorized Internet disclosure of its employees’ personal data. Francis has some interesting observations about the decision’s possible implications as well. A version of this article previously was published on the Willis Towers Watson Wire blog (here). I would like to thank Francis for allowing me to publish his article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Francis’s article:

***********************

You would think that if a company was found both by the relevant regulatory authorities and by the courts to have taken all reasonable steps to protect personal data, it would have a complete answer to a data breach claim. Not so. That was the surprising (to some) outcome of a recent Court of Appeal decision claim in a case concerning a well-known UK supermarket chain. The judgment can be found here. The implications of this case for all companies and for the boards which preside over them should not be ignored.

  The Facts 

The facts are stark. One of the supermarket’s senior employees deliberately copied the personal data of nearly 100,000 employees onto a personal USB stick. Some months later (at his own home) he posted all this personal data on a file sharing website. The supermarket was alerted and the website was taken down. The ex-employee was later prosecuted and jailed for 8 years for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998. Some 5,500 of the affected employees then joined group litigation against the supermarket in the UK High Court alleging against it both primary and vicarious liability for: (i) misuse of private information; (ii) breach of confidence; and, (iii) breach of the Data Protection Act. (The case relates to an era before the introduction of GDPR)

  Primary and Vicarious Liability

The Court cleared the company of primary liability on the basis that it had not itself breached any of the data protection principles (except in one respect which was not causative of any loss). The direct claim against it for misuse of private information and breach of confidentiality also failed. By contrast, the Court found the company vicariously liable for all of the criminal actions of its former employee. It was on this limb of the High Court’s decision that the supermarket appealed.

One of the principal grounds of appeal was that because the former employee’s conduct had occurred outside the scope of his employment, the company could not and should not be held liable. The Court of Appeal found that because the employee was specifically entrusted with payroll data, there was a sufficient connection between his authorised tasks and the wrongful acts perpetrated by him. It held that “there was an unbroken thread that linked his work to the disclosure: what happened was a seamless and continuous sequence of events“.

  Public Policy Considerations

The Court of Appeal specifically rejected the public policy based argument run by the supermarket that vicarious liability in similar scenarios imposes a disproportionate burden on supposedly “innocent” employers. It said:

“There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees. We have not been told what the insurance position is in the present case, and of course it cannot affect the result. The fact of a defendant being insured is not a reason for imposing liability, but the availability of insurance is a valid answer to the Doomsday or Armageddon arguments put forward…”(emphasis added)

  Failure to Insure

The obvious public policy consideration behind the doctrine of vicarious liability is to provide a means of compensating innocent victims of corporate activity in circumstances where the company’s employees responsible for the relevant conduct do not have sufficiently deep pockets.  It is interesting that the Court of Appeal’s answer to the countervailing policy consideration that “innocent” companies will be unfairly punished by the application of the principle is (in large part) the assumed availability of adequate and relevant insurance. In principle, both the losses which the supermarket chain suffered and those in respect of which it was being sued are probably insurable under a cyber policy but the question as to the availability and cost of such insurance are more open.

How long will we have to wait before we see  an inventive claimants’ lawyer making the case based on the Court of Appeal’s conclusion that that the negligent failure by a company’s board to take out adequate insurance to protect a company from this form of no fault liability has caused it damage?

  The post Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now appeared first on The D&O Diary.

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now published first on

[taleshalance4]

Claims arising from golf tournaments and spectator sports

Personal injuries sustained by players or spectators on or around the sporting field are nothing new. However a number of recent high profile cases that have attracted media interest have put sports-related injuries back in the spotlight.

In Paris at the end of September this year there was an unfortunate golfing accident where a spectator at the Ryder Cup lost the sight in her eye after being struck by a wayward tee shot from a competing player. There are an estimated 12,000 golf related injuries each year in the UK, over a quarter of which are head injuries caused by a golf ball.

Can you claim for compensation after being hit by a golf ball?

In order to successfully make a compensation claim for being hit by a golf ball in the UK, evidence has to show that either the owners of the golf course or the playing golfer were negligent. Golfers and clubs have a duty of care to follow, which must reasonably protect fellow golfers and spectators from the risk of being hit by a ball. However the courts do appreciate that not all risks can be eliminated.

The duty of care includes ensuring that no one is in the path of an intended swing and calling ‘fore’ after the shot is taken if there is even a small chance that the ball will hit a spectator or player. Event organisers must also ensure signs are erected alerting spectators of potential hazards and that the course meets health and safety standards. Most event organisers undertake risk assessments and put into place measures to reduce the risk of injury to players, officials and/or spectators.

Who can you claim against?

The Ryder Cup took place in France but if the claim were in the UK, there would be several potential defendants:

The player – for not calling ‘fore’ when pulling or slicing a shot and seeing the ball veer into a designated spectator area.

Event organisers – for failing to give marshals or spectators instructions about possible risks. They would be vicariously liable for any negligence of the course officials.

The course designer if it can be proven the course was designed in such a way that a risk of injury was increased.

Are you likely to succeed?

There is of course an element of risk when spectating at a golf tournament. An obvious risk is the position of the spectators next to the fairway. Any golfer, no matter how experienced, can miss-hit a shot and organisers of events such as the Ryder Cup are keen to make spectators aware of the risks in their terms and conditions. If the defendant can prove that the spectator was aware of, and accepted, the risk then there may well be a defence to the claim. To eliminate risk totally would potentially mean not allowing spectators to attend, which is against the spirit of most sports.

Claims often fail if it can be shown that golf clubs and/or golfers have taken reasonable steps to prevent injury and the duty of care they owe to players/spectators has been discharged. In particular this would include spectators being marshalled to safer positions and being warned of shots being played. It may be argued that the spectator was not concentrating on play enough and therefore put their own safety at risk.

In summary therefore the prospects of a successful claim in relation to being hit by a golf ball are low, however there are other spectator accidents where liability would be easier to establish, for example

Accidents caused by poorly maintained sports grounds/stadiums

Accidents in car parks involving moving vehicles

Accidents caused by badly organised events, eg poor crowd control

Unsafe seating leading to injury

Defective crash barriers

Tripping, slipping and falling accidents due to uneven ground, poor lighting, leaking water or obstructions in gangways

Food poisoning from consuming pies/hotdogs and similar snacks that are not heated to the correct temperatures

If you have been involved in a spectator accident or been injured at a sporting event in the last three years you may be entitled to claim compensation. If you would like some advice about whether you can make a claim then call our expert Solicitors on 0114 218 4000 or email info@tayloremmet.co.uk

The post Claims arising from golf tournaments and spectator sports appeared first on The Personal Injury Blog.

from https://ift.tt/2QqvaTE from https://eliaandponto1.tumblr.com/post/180785519397

[simonconsultancypage]

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now

Francis Kean

In the following guest post, Francis Kean, Executive Director FINEX Willis Towers Watson, take a look at an interesting and arguably surprising recent U.K. judicial decision in which a supermarket chain was held liable for the unauthorized Internet disclosure of its employees’ personal data. Francis has some interesting observations about the decision’s possible implications as well. A version of this article previously was published on the Willis Towers Watson Wire blog (here). I would like to thank Francis for allowing me to publish his article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Francis’s article:

***********************

You would think that if a company was found both by the relevant regulatory authorities and by the courts to have taken all reasonable steps to protect personal data, it would have a complete answer to a data breach claim. Not so. That was the surprising (to some) outcome of a recent Court of Appeal decision claim in a case concerning a well-known UK supermarket chain. The judgment can be found here. The implications of this case for all companies and for the boards which preside over them should not be ignored.

  The Facts 

The facts are stark. One of the supermarket’s senior employees deliberately copied the personal data of nearly 100,000 employees onto a personal USB stick. Some months later (at his own home) he posted all this personal data on a file sharing website. The supermarket was alerted and the website was taken down. The ex-employee was later prosecuted and jailed for 8 years for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998. Some 5,500 of the affected employees then joined group litigation against the supermarket in the UK High Court alleging against it both primary and vicarious liability for: (i) misuse of private information; (ii) breach of confidence; and, (iii) breach of the Data Protection Act. (The case relates to an era before the introduction of GDPR)

  Primary and Vicarious Liability

The Court cleared the company of primary liability on the basis that it had not itself breached any of the data protection principles (except in one respect which was not causative of any loss). The direct claim against it for misuse of private information and breach of confidentiality also failed. By contrast, the Court found the company vicariously liable for all of the criminal actions of its former employee. It was on this limb of the High Court’s decision that the supermarket appealed.

One of the principal grounds of appeal was that because the former employee’s conduct had occurred outside the scope of his employment, the company could not and should not be held liable. The Court of Appeal found that because the employee was specifically entrusted with payroll data, there was a sufficient connection between his authorised tasks and the wrongful acts perpetrated by him. It held that “there was an unbroken thread that linked his work to the disclosure: what happened was a seamless and continuous sequence of events“.

  Public Policy Considerations

The Court of Appeal specifically rejected the public policy based argument run by the supermarket that vicarious liability in similar scenarios imposes a disproportionate burden on supposedly “innocent” employers. It said:

“There have been many instances reported in the media in recent years of data breaches on a massive scale caused by either corporate system failures or negligence by individuals acting in the course of their employment. These might, depending on the facts, lead to a large number of claims against the relevant company for potentially ruinous amounts. The solution is to insure against such catastrophes; and employers can likewise insure against losses caused by dishonest or malicious employees. We have not been told what the insurance position is in the present case, and of course it cannot affect the result. The fact of a defendant being insured is not a reason for imposing liability, but the availability of insurance is a valid answer to the Doomsday or Armageddon arguments put forward…”(emphasis added)

  Failure to Insure

The obvious public policy consideration behind the doctrine of vicarious liability is to provide a means of compensating innocent victims of corporate activity in circumstances where the company’s employees responsible for the relevant conduct do not have sufficiently deep pockets.  It is interesting that the Court of Appeal’s answer to the countervailing policy consideration that “innocent” companies will be unfairly punished by the application of the principle is (in large part) the assumed availability of adequate and relevant insurance. In principle, both the losses which the supermarket chain suffered and those in respect of which it was being sued are probably insurable under a cyber policy but the question as to the availability and cost of such insurance are more open.

How long will we have to wait before we see  an inventive claimants’ lawyer making the case based on the Court of Appeal’s conclusion that that the negligent failure by a company’s board to take out adequate insurance to protect a company from this form of no fault liability has caused it damage?

  The post Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now appeared first on The D&O Diary.

Guest Post: Claims Against Directors for Failure to Insure Against Cyber Risk Are More Likely Now published first on http://simonconsultancypage.tumblr.com/

[eliaandponto1]

Claims arising from golf tournaments and spectator sports

Personal injuries sustained by players or spectators on or around the sporting field are nothing new. However a number of recent high profile cases that have attracted media interest have put sports-related injuries back in the spotlight.

In Paris at the end of September this year there was an unfortunate golfing accident where a spectator at the Ryder Cup lost the sight in her eye after being struck by a wayward tee shot from a competing player. There are an estimated 12,000 golf related injuries each year in the UK, over a quarter of which are head injuries caused by a golf ball.

Can you claim for compensation after being hit by a golf ball?

In order to successfully make a compensation claim for being hit by a golf ball in the UK, evidence has to show that either the owners of the golf course or the playing golfer were negligent. Golfers and clubs have a duty of care to follow, which must reasonably protect fellow golfers and spectators from the risk of being hit by a ball. However the courts do appreciate that not all risks can be eliminated.

The duty of care includes ensuring that no one is in the path of an intended swing and calling ‘fore’ after the shot is taken if there is even a small chance that the ball will hit a spectator or player. Event organisers must also ensure signs are erected alerting spectators of potential hazards and that the course meets health and safety standards. Most event organisers undertake risk assessments and put into place measures to reduce the risk of injury to players, officials and/or spectators.

Who can you claim against?

The Ryder Cup took place in France but if the claim were in the UK, there would be several potential defendants:

The player – for not calling ‘fore’ when pulling or slicing a shot and seeing the ball veer into a designated spectator area.

Event organisers – for failing to give marshals or spectators instructions about possible risks. They would be vicariously liable for any negligence of the course officials.

The course designer if it can be proven the course was designed in such a way that a risk of injury was increased.

Are you likely to succeed?

There is of course an element of risk when spectating at a golf tournament. An obvious risk is the position of the spectators next to the fairway. Any golfer, no matter how experienced, can miss-hit a shot and organisers of events such as the Ryder Cup are keen to make spectators aware of the risks in their terms and conditions. If the defendant can prove that the spectator was aware of, and accepted, the risk then there may well be a defence to the claim. To eliminate risk totally would potentially mean not allowing spectators to attend, which is against the spirit of most sports.

Claims often fail if it can be shown that golf clubs and/or golfers have taken reasonable steps to prevent injury and the duty of care they owe to players/spectators has been discharged. In particular this would include spectators being marshalled to safer positions and being warned of shots being played. It may be argued that the spectator was not concentrating on play enough and therefore put their own safety at risk.

In summary therefore the prospects of a successful claim in relation to being hit by a golf ball are low, however there are other spectator accidents where liability would be easier to establish, for example

Accidents caused by poorly maintained sports grounds/stadiums

Accidents in car parks involving moving vehicles

Accidents caused by badly organised events, eg poor crowd control

Unsafe seating leading to injury

Defective crash barriers

Tripping, slipping and falling accidents due to uneven ground, poor lighting, leaking water or obstructions in gangways

Food poisoning from consuming pies/hotdogs and similar snacks that are not heated to the correct temperatures

If you have been involved in a spectator accident or been injured at a sporting event in the last three years you may be entitled to claim compensation. If you would like some advice about whether you can make a claim then call our expert Solicitors on 0114 218 4000 or email info@tayloremmet.co.uk

The post Claims arising from golf tournaments and spectator sports appeared first on The Personal Injury Blog.

from https://ift.tt/2QqvaTE