Civil Litigation Law Assignment Topic Examples

1. It has been said that the law adopts an overly restrictive approach in awarding damages for negligently inflicted psychiatric injury.

The development of the law on damages for psychiatric harm has attracted potent criticism which tends to focus upon its piecemeal and patchwork nature. The court has also struggled to deal with the idea that mental trauma is less serious than physical harm. Consequently, legal development has been rather stagnant for some time. This study will examine the law's approach to awarding damages for psychiatric injury, highlighting its clear attempts to prevent frivolous claims from succeeding. An array of mechanisms have been devised to restrict the types of claims that are able to succeed, yet is this approach too strict? How have policy considerations and floodgates concerns restricted the law in this area and is reform necessary?

Suggested Reading

• Harpwood, VH 2009. Modern Tort Law, 7th edn, London: Routledge-Cavendish.
• Law Commission 1995. Consultation Paper, 'Liability for Psychiatric Illness', Law Comm No 137.
• Mullany, NJ and Handford, PR 1993. Tort Liability for Psychiatric Damage, London: Law Book Co Ltd.
• Teff, H 1998. 'Liability for Psychiatric Illness: Advancing Cautiously', Modern Law Review, vol. 61, no. 849.

2. Explore the law's approach to liability for pure economic loss in construction contracts.

Although the design and build method is commonly used in the UK construction industry, the extent to which tortious liability is owed by design and build contractors towards project owners to not cause pure economic loss is not clearly addressed through case law decisions. This study will explore the pitfalls in decisions pertaining to this issue and attempt to propose reforms and improvements to the law in order to ease such problems. The problem has indeed been addressed; some suggesting that perhaps a more liberal approach is necessary. Yet others contend that the restrictive approach is vital. Conflicting views will be explored and tested in a bid to determine which is the most appropriate for clarifying ambiguities in the law as it currently stands.

3. 'It may very well be that proprietary estoppel will not often assist a claimant in the commercial context, but that is probably all to the good... judges should be slow to encourage the introduction of uncertainties based on their views of the ethical acceptability of the behaviour of one of the parties.' Lord Neuberger, 'The Stuffing of Minerva's Owl? Taxonomy and Taxidermy in Equity' [2009] CLJ 537. Critically examine this view with reference to proprietary estoppel claims in relation to land.

Lord Neuberger's view on claims for proprietary estoppel for land can be divided into two main issues. He firstly identifies that claimants in commercial situations are seldom able to make successful claims for proprietary estoppel; this is demonstrated in many judicial decision though it is most prominent in the case of Thorner v Major (2009). This particular decision, which will be given closer attention in this study, establishes that Lord Neuberger's statement is accurate as a result of the flexible, case-by-case approach adopted by the courts towards claims of proprietary estoppel. Lord Neuberger also recognises that the courts should not decide proprietary estoppel cases by reference to their view of the ethical merits of the parties' behaviour. This relates both to proprietary estoppel claims and contemplations of 'unconscionable behaviour'. This study will critically explore these two core themes, applying them to case law decisions and evaluating their accuracy in light of the law's stance on proprietary estoppel.

Suggested Reading

• Neuberger, L 2009. 'The Stuffing of Minerva's Owl? Taxonomy and Taxidermy in Equity', Cambridge Law Journals, vol. 68, no. 3.
• Dixon, M 2010. Modern Land Law, 7th Edition, London: Routledge-Cavendish.
• Halliwell, M 2006. 'Estoppel: Unconscionability as a Cause of Action', Legal Studies, vol. 14, no. 1.
• Smith, RJ 2011. Property Law, 7th edn, New York: Longman.

4. What are the strengths and weaknesses of promissory theories of liability in explaining and justifying the nature of contractual obligations?

While most studies on contractual topics focus upon specific or practical issues, there exists a considerable degree of literature which theoretically questions why contract law binds us. This study will examine the more profound issue pertaining to the underlying rationales and concepts of the contract and contract law. Contract law is often placed within the realm of morality, mostly due to the fact that it concerns the keeping of promises. Yet has the harshness of modern day agreements caused promissory theories of contract to decrease in importance? Has the moral basis of contract law given way to the cutthroat nature of business transactions and the resulting need to objectively assess the intentions of the parties? These issues will be explored in this theoretical approach to contract law which seeks to explain the nature of contractual obligations.

Suggested Reading

• Atiyah, PS 1986. Essays on Contract, New York: Oxford University Press.
• Chen-Wishart, M 2008. Contract Law, 2nd edn, New York: Oxford University Press.
• Fried, C 1981. Contract as Promise, Harvard: Harvard University Press.
• Kimel, D 2005. From Promise to Contract, Oxford: Hart Publishing.
• Smith, S 2004. Contract Theory, Oxford: Oxford University Press.

5. What is your understanding of the doctrine of utmost good faith? Should it be left to persist or should it be replaced?

The doctrine of utmost good faith is a controversial yet significant topic, not only due to its importance in law, but also due to its relevance to the traditional concept of freedom of contract which is still evident in the law today. The initial principle of good faith which had emerged as early as the eighteenth century has lost rigour as modern contracts have introduced the need to accommodate alternative intentions. This study will examine how the law has changed in relation to the principle of utmost good faith. Elements that threaten or erode its existence will be described as well as elements which demonstrate its lingering existence. It will ultimately be demonstrated that the doctrine is indeed hugely different from its original state, and that its gradual demise is a result of the use of the term 'utmost' in the Maritime Insurance Act 1906. Its altered scope will be examined in light of modern decisions in order to determine whether it has resulted in unjust decisions or realistic accounts of modern day transactions.

Suggested Reading

• Atiyah, PS & Smith, S 2006. Atiyah's Introduction to the Law of Contract, 6th edn, London: Oxford University Press.
• Beatson, J & Friedman, D 1995. Good Faith and Fault in Contract Law, New York: Oxford University Press.
• Brownsword, R 2000. Contract law, Themes for the twenty–first century, 1st edn, London: Reed Elsevier.
• Mckendrick, E 2009. Contract Law, 8th edn, London: Palgrave Macmillan.

6. Is the current state of the law satisfactory in the way it deals with the right to claim in tort and contract for pure economic losses resulting from negligent statements prior to a professional services contract being formed?

The variety of available claims for misrepresentation both in tort and in contract law has the potential to provoke many to form the opinion that damages are far too easily recoverable and that types of damages overlap and contradict one another. The gradual shift from restrictive fraudulent misrepresentation towards more contemporary types of misrepresentation has proven to be an important advancement in both tort and contract law. This study will explore and compare the law's stance on the right to claim for economic losses arising from negligent statements. Damages for negligent misrepresentation are particularly prominent, yet how has the law developed since landmark cases such as Hedley-Byrne? Is the law's stance on damages for misrepresentation satisfactory or unnecessarily contradictory? This study will examine such queries and ultimately demonstrate that the existing forms of misrepresentation are distinct, complementary and rational.

Suggested Reading

• Atiyah, PS 1967. 'Negligence and Economic Loss', Law Quarterly Review, vol. 83, no. 248.
• Bussani, M & Palmer, VV 2003. Pure Economic Loss in Europe, Cambridge: Cambridge University Press.
• Cartwright, J 2007. Misrepresentation, Mistake and Non-Disclosure, London: Sweet & Maxwell.
• McKendrick, E 2010. Contract law: Text, Cases, and Materials, 4th edn, New York: Oxford University Press.

7. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is your neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question... Per Atkin L., in Donoghue v. Stevenson (1932) AC 562. Critically evaluate the neighbour principle as defined in the above statement.

The landmark decision of Donoghue v Stevenson was intriguingly not the first case to establish the need for a general standard in relation to negligence in tort. Decisions prior to Donoghue pursued a definition of categories of foreseeability to establish liability for negligence. This primitive concept of negligence was developed into the principle that a duty of care should exist between the claimant and the defendant. This study will critically examine the law's approach to and definition of duty of care, particularly in terms of how such a duty is established. Which criteria serve to establish a duty of care and which function to negate it? The requirements of proximity, foreseeability and policy considerations will be examined in an attempt to determine where the boundaries of the duty of care lie and whether they need to be altered.

Suggested Reading

• Heuston, RF.V 1957. 'Donoghue and Stevenson in Retrospect', Modern law Review, vol. 20, no. 1.
• Horsey, K & Rackley, E 2009. Tort Law, New York: Oxford University Press.
• Ibbetson, DJ 1999. A Historical Introduction to the Law of Obligations, New York: Oxford University Press.

8. Claims in contract and tort for personal injury from defective goods.

This study critically evaluates the potential claims in contract and tort which are available to consumers who suffer personal injury caused by defective goods. There are three main potential claims which may arise in contract, the tort of negligence or the Consumer Protection Act 1987. The scope and approach of statutes such as the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and the Unfair Contract Terms Act 1977 will be examined in light of case law decisions. The three claims will be compared and evaluated in a bid to determine which is the most suitable for certain types of claims. It will ultimately be concluded that the law on liability for injury caused by defective goods provides sufficient protection and redress for consumers. It is, however complicated, yet are such complications necessary or can they be eased?

Suggested Reading

• Laws, W, Price, F, Revenko, H, Rutter, R & Smith, A 2010. Agreements, Rights and Responsibilities, Manual 1, 12th edn, Oxford: Oxford University Press.
• Poole, J 2010. Contract Law, 10th edn, New York: Oxford University Press.
• Murphy, J 2007. Street on Torts, 12th edn, New York: Oxford University Press.

9. Discuss the limited circumstances in which a duty of care might be imposed on a defendant for an omission, (rather than a positive act), in the context of a Negligence action, explaining why the court is often reluctant to impose a duty for an omission.

UK law generally does not impose a duty for failing to act, regardless of whether another suffers loss or injury as a result. This is grounded in the principle that there is no liability for pure omissions: we are not expected to owe others a duty to take positive action in order to prevent harm. This study will examine situations in which duties are imposed for omissions; they are indeed special and limited circumstances, yet they nonetheless exist. The courts' approach to exceptions to the general omission rule will be critically analysed in a bid to determine whether they adopt a restrictive or expansive approach to the concept. Is the law in need of reform and do problem areas exist? It will ultimately be concluded that the courts have gradually moved away from imposing a duty of care for omissions, yet that this shift can be convincingly justified.

Suggested Reading

• Cooke, J 2009. Law of Tort, London: Pearson.
• Horsey, K & Rackley, E 2011. Tort Law, 2nd edn, New York: Oxford University Press.

10. Critically explore the features of product liability in the UK and the US and compare how each legal system approaches the concept with reference to prominent case law.

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American product liability law is littered with historical cases such as the McDonald's Coffee case and the American Pants Case which demonstrate the excessive and controversial nature of product liability in the US. Yet for the US, such cases are not historical; they are yet few among many examples of the frivolous nature and unnecessarily wasted resources of the judicial system. The UK notably lacks such prominent cases, which are indeed few and far between. Yet which system is more suited to the underlying principles of product liability? This study will critically examine the approaches of UK and US law towards product liability in terms of its principles, concepts and rationales. It will ultimately be proposed that product liability in the US is a far cry from its less radical UK counterpart. The US system displays the need for limitations to be placed on product liability rules and mechanisms; this study will attempt to apply the UK's approach to that of the US in a bid to exclude frivolous and unnecessary claims.

Suggested Reading

• Greenlee, KB 1995. 'Kramer v. JavaWorld: Images, Issues, and Idols in the Debate over Tort Reform', Cap University Law Review, vol. 26, no. 701.
• Nader, R & Smith, WJ 1996. No Contest: Corporate Lawyers and the Perversion of Justice in America, New York: Random House Inc.

11. Critically evaluate the law on damages for psychiatric harm.

This paper will explore the law on damages for psychiatric harm with particular focus on employees. It is commonly accepted that psychiatric harm poses a particular problem for damages, as most forms of psychiatric harm are difficult to evaluate or prove. How has the law dealt with such problems and is its stance satisfactory or problematic? In the context of employer's liability for negligence, there exists a particular conflict between justly compensating employees and the aptly recognising psychiatric harm. The courts have evidently struggled to ease this conflict. Yet which factors do they consider in such cases and what role do policy considerations play? This study will examine these important issues and examine how the law and the courts seek to exclude frivolous claims in the workplace.

Suggested Reading

• Barker, K 1993. 'Unreliable Assumptions in the Modern Law of Negligence', Law Quarterly Review, vol. 109, no. 461.
• Mullany, NJ & Handford, PR 1993. Tort Liability for Psychiatric Damage, Sydney: The Law Book Co.
• Napier, M & Wheat, K 1995. Recovering Damages for Psychiatric Injury, London: Blackstone Press.