http://www.criticaltwenties.in/corporatelawandbusiness/social-desirability-and-negligence Powered by Webshore Mon, 13 Apr 2015 04:31:05 +0000 hourly 1 http://wordpress.org/?v=3.3.1 http://www.criticaltwenties.in/corporatelawandbusiness/social-desirability-and-negligence#comment-2823 Niranjan Fri, 25 Mar 2011 09:42:57 +0000 http://www.criticaltwenties.in/?p=2271#comment-2823 Thank you. It looks that way, but the chances are that the same question would have come up regardless, because the test Lord Hoffmann accepted in Tomlinson v Congleton marked something of a shift in the law of negligence, and even the dissenting judge in this case differed not on the meaning or applicability of the test, but on whether the trial judge's application of it was reviewable. The English appellate courts almost never review an exercise of discretion or finding of fact (unless it is perverse), and so Smith LJ dismissed the appeal only because she found that the trial judge had applied the Tomlinson test - since he had, whether he reached the correct conclusion on the facts (including that the victim was a child) became irrelevant. In a broader sense, the case is a good illustration of the reason Lord Atkin's neighbourhood principle has had to be modified in particular contexts. Thank you. It looks that way, but the chances are that the same question would have come up regardless, because the test Lord Hoffmann accepted in Tomlinson v Congleton marked something of a shift in the law of negligence, and even the dissenting judge in this case differed not on the meaning or applicability of the test, but on whether the trial judge’s application of it was reviewable. The English appellate courts almost never review an exercise of discretion or finding of fact (unless it is perverse), and so Smith LJ dismissed the appeal only because she found that the trial judge had applied the Tomlinson test – since he had, whether he reached the correct conclusion on the facts (including that the victim was a child) became irrelevant. In a broader sense, the case is a good illustration of the reason Lord Atkin’s neighbourhood principle has had to be modified in particular contexts.

]]> http://www.criticaltwenties.in/corporatelawandbusiness/social-desirability-and-negligence#comment-2818 Harini Viswanathan Thu, 24 Mar 2011 18:28:03 +0000 http://www.criticaltwenties.in/?p=2271#comment-2818 Very lucidly written piece. However from the tenor of the judge apart from the social desirability of the sport it does seem that he has factored in the youth of the injured party in his decision making I am not sure he would have been this wary of coming to a clear decision had it been an adult. Matters always get muddled when the victims are young children. Very lucidly written piece. However from the tenor of the judge apart from the social desirability of the sport it does seem that he has factored in the youth of the injured party in his decision making I am not sure he would have been this wary of coming to a clear decision had it been an adult. Matters always get muddled when the victims are young children.

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