Friday, February 7, 2014

ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

A usage which has acquired the force of law.  When the usage is public, peaceable, uniform, general, continued, reasonable and certain, and has lasted since time immemorial it acquires the force of law and is known as a custom. While statute can and does replace prior custom, statutes must be interpreted in light of custom when there is doubt as to their meaning: optima est legum interpres consuetudo. A custom derives its force from the tacit consent of the legislature and the people,

Customs can be general or particular customs. Particular customs are lex loci Particular customs are those which affect the inhabitants of some particular districts only.  The common law is an example of general custom, as is public international law.

Consuetudo.Latin. Custom; usage; practice.Consuetudo est altera lex.Custom is another law.Consuetudo interpres legum.
Custom is the expounder of laws.Consuetudo loci observanda.The custom of the place is to be conformed to.
-D-Damages,Damages | Schadensersatz (in Geld) / Schäden
Pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered loss detriment or injury.
A general term for the remedy of a tort. Normally limited to monetary damages on a theory of compensation for the injured interest (either as valued by tort feasor or victim), but may also rely on a theory of retribution, deterrence/prevention or emotional satisfaction. In its broadest sense damages can imply remedies other than monetary.There are a variety of types of damages. The various terms and their meanings are discussed below:Damages, Actual | Konkreter Schaden | Indemnisation effective Damages awarded for calculable material injury; Damages deemed to compensate the injured party for losses sustained as a direct result of the injury suffered Damages, Civil / Constitutional tort Injuries sustained either to one's rights as a citizen of a State and of the United States, or else to his rights as a member of a family. See: Bivens Claim Damages, compensation for | Schadensersatz | dommages et intérêts |   risarcimento dei danni The compensation which the law will award for an injury done and thus a synonym for damages Damages, Constructive
Those damages imputed in law from an act of wrong to another person. Such damages are imputed, i.e. they may or may not be related to the actual damages.Damage, Compensatory (opp. To punitive damages) | Ersatz eines eingetreten en materiellenn oderim materiellenn) Schadens Ausgleichsentschädigung ? |  dommages-intérêts compensatoires / indemnité compensatrice | premio di compensazione
Compensatory damages are intended to remedy the actual damages caused by the party against whom they awarded. Thus compensatory damages are an award of money intended to be exactly equal to the injury of the victim and nothing more. Yet they may include the abstract compensation for pain and suffering. Nevertheless compensatory damages do not include punitive damages (q.v.)  .
Damages, Consequential | Folgeschaden (aus Primärschaden)/ Indirekter Schaden | dommage consécutif / dommages secondaires / dommage indirect.Those damages which do not arise immediately out of the plaintiff’s tort but which nevertheless are caused by the tort.See: mitigation of damages, pure economic loss.Damages, Direct  | dommage direct Those damages which arise initially or primarily as a result of plaintiff’s tort. Damage, Divisible | teilbar Schaden (bei Nebentäterschaft) At common law where two or more tortfeasors are together the wrongful cause of plaintiffs injury, the plaintiff would have a cause of action against either for the entire amount of his or her damages. A possible reform which has not yet been broadly adopted would be to divide the damage award against each defendant in proportion to their fault.Damage, Emotional | Gefühlsschaden See damages for pain and suffering Damages, exemplary | Exemplarischer Schadensersatz |  dommages-intérêts exemplaires |  risarcimento danni A synonym for punitive damages. Exemplary damages are those damages arising out of the defendant's willful acts where such acts are ere malicious, violent, oppressive, fraudulent, wanton or grossly reckless. The justification of exemplary damages is primarily punishment of the individual and deterrence of other individuals but secondarily as a form of compensation. In some cases of outrageous conduct, e.g. fraud, sexual abuse, or other intentional torts, the exemplary damages can be much greater than the actual damages.Damages, General | Ersatz eines immaterial in Schadens | Courants danni generici Those damages which ordinarily flow from the tortious conduct and thus need not be specifically pleaded as they are implicit in the plaintiffs complaint. Having proven the underlying act, the ordinary damages flowing therefrom are presumed, though such proof may be refuted at least in the case of libel. Though there is no necessary correspondence between general damages and primary injury and special damages and consequential damages that correspondence often occurs in fact. In fact prudence dictates that plaintiff’s plead all damages as special damages to avoid losing their substantive rights due to the procedural distinction between general and special damages.Damages for pain and suffering | schmerzensgeld Injuries to the plaintiff’s sense of well being; The non material damages to a victim of a tort which are remedied with money under a theory of compensation Pure motional damages, where allowed, are generally only allowed to immediate relatives. However in cases where the defendant is in close proximity to a violent accident and thus felt themselves in danger pure emotional damages will be permitted. Further emotional damages for pain and suffering in addition to and as a result of some substantive material damages will also be allowed. A damage per se is one wherein damages are presumed upon occurrence of the tort, e.g. in cases of libel where the libel concerns imputation of crime, a loathsome disease, the unchastity of a woman, or words affecting the plaintiffs trade, business or profession. However per se damages may be able to be refuted by the defendant who will then bear the burden of proof for his affirmative defense. Damages, presumed Damages which do not require proof as they are presumed as a matter of law to result naturally and necessarily from a tortious act. Damages, punitive  | damages-intérêts punitifs Punitive damages are those damages awarded in case of willful, wanton, or malicious conduct. They may even be available in cases of reckless negligence if the damages are particularly severe or in cases of fraudulent acts. Punitive damages serve to punish the defendant and deter others. The plaintiff must prove both the necessity and extent of punitive damages according to the ordinary standard of a  preponderance of the evidence. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is reckless if it reflects a complete indifference to the safety and rights of others.

See: Wetherbee v. United lns' Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680.



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