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DEFICIENT RECOVER OF DAMAGES

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Despoina Kafka

on 20 November 2015

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Transcript of DEFICIENT RECOVER OF DAMAGES

"CAN WE RECOVER DAMAGES ON OIL POLLUTION ACCIDENTS UNDER ENGLISH LAW AND ESPECIALLY UNDER LAW OF NEGLIGENCE (TORT) AND RYLANDS V FLETCHER? "
BARISUA BOBBY FEYII
KAFKA DESPOINA
TALIANI ANNA-RAFAILIA
designed by Péter Puklus for Prezi
The difficulty in claiming damages
This case illustrates how difficult is to bring an action on the three separate torts of trespass, nuisance and negligence in cases of marine pollution, due to contradictory opinions of the judges.

With respect to negligence, the House of Lords held that the Master did not breach the duty of care.

DIFFICULTY IN PROVING FORESEEABILITY
Although the law of tort of negligence has been the remedy for many defences in English cases, generally it was found
insufficient
in others because of the
difficulty in proving liability.

1)Southport Corporation V Esso Petroleum
(1956)
2)Wagon Mound (1961)
southport corporation v
esso petroleum, ''the inverpool case'' (1956)

In the tort of negligence it is possible to prove the existence of duty of care and its breach. But, plaintiffs may cannot prove that both the damage and its extent were foreseeable to the defendants, (due to the peculiarities of environmental cases, in which the environment and not the property is injured)
The decisions in Inverpool case did not explore the point of foreseeability of the damage, where the damage must be the foresseable consequence of the negligent act
wagon mound case (1961)


No compensation
to the victim of oil pollution according to the Privy Council's decision, since the claim of the negligence was dismissed by an argumentation that a person should be held liable only if the damage is foreseeable.
TORT IN ENGLISH LAW
Private law
contract
tort
law of obligation
civil wrongs
a damage that derives from oil pollution is maritime tort.
tort law is mainly supported by principles of corrective justice =to restore injured parties .-compensation
Under national English only law of tort provided remedies to recover damages from marine pollution
CATEGORIES UNDER WHICH A CLAIM IN TORT CAN BE BROUGHT
tort of negligence
tort of nuisance(private and public) -tort of "reylands v fletser"
tort of trespass
LAW OF NEGLIGENCE

a person do not take reasonable care to avoid a reasonably foreseeable risk of causing damage to property or injury to a person
Reimbursement for injury, economic loss or damage
environmental harm: not strictly recognition of compensation for environmental harm, but damages to property = legal source of rights
PROOF OF NEGLIGENCE
1)Duty of good care
Donologue v Stevenson
: duty to take reasonable care to avoid acts or omissions which you can reasonable foresee that would be likely to injure your neighbhour.
MARINE ENVIRONMENT
: duty to the shipowners not to carry out any action which might reasonably pollute the coastline.(Inverpool Case)
.
a)the damage must be foreseeable
b)there must be proximity defendant-claimant
c)fair and reasonable to pose liability.
2)FAULT-BREACH OF DUTY OF CARE
determination of
standard
of care that defendant owed to claimant
that a reasonable person would adopt in the profession occupation activity in question.

if the defendant' s breach of duty caused the damage ''BUT FOR TEST''
if the answer is no = causation test satisfied
if the answer is yes = defendant not liable.
4)Damage not too remote from the defendant's negligence
remoteness of damage = the damage must be
foreseeable



WAGON MOUND NO 1 (1961)AC 388 TEST
ELEMENTS REQUIRED FOR TORT OF NEGLIGENCE
the polluter is clearly identifiable
the impacted area relatevely confined
the extent of the damage is readily quantifiable.
BUT
PROBLEMS
the impacted area
the parties responsibility
causation -potential long term effects of hazardous sustance release
tort system,
unsatisfactory resolution of claim under negligence
RYLANDS v Fletcher 1868
Defendant constructed a reservior on their land. water from the reservior filtered through and spread to a working mine owned by the claimant causing damage.
Majority ruled in favour of defendant = basing it on the fact he was not aware of the mines and didnt act in a negligent way
However, Bramwell B, Dissenting argued that the claimant had a right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance
CHANGE OF LAW - STRICT LIABILITY
Lord Cranworth "if a person brings,or accumulates on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. if it does escape,and cause damage he is responsible, however carefully he may have been,and whatever precautions he may have taken toprevent damage.
Intention to Strict Liability
Torrey canyon incident 1967
Torrey Canyon struck on Pollard's rock, causing a huge oil spill and therefore a
natural

disaster
. The British Goverment bombed the wreck,although on high seas, in order to limit the extent of the oil pollution.
NEED FOR INTERNATIONAL CONVENTIONS
After Torrey Canyon environmental awareness-
The British Government submitted a note to IMKO for changes in international laws for oil pollution:
1)
1969 Civil LiabilityConvention(CLC)
new Liability Regime=
Strict Liability
- no need to prove negligence/solution to jurisdictional problems
2)1971 FUND
no liability
no compensation
3)CAUSATION
Full transcript