Critical Contexts of Law: The Night Mary Poppins Died - Assignment Example

Critical Contexts of Law: The Night Mary Poppins Died Assignment 1 Q3. In what ways might either Karl or Gabrielle acquire rights under EU law? What would these comprise? Under the EU law, its provisions “are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it by the treaties” (s. 51, Charter of the Fundamental Rights of the European Union). Thus, UK is bound to apply the principles of EU law within its borders and since there is no distinction between citizens and non-citizens in its provisions, then UK is bound to apply all EU laws without discrimination on all persons subject to its jurisdiction. Under international law, a state has prescriptive jurisdiction or authority to apply its national laws on all persons within its jurisdiction, regardless of the nationality of persons. The application of this authority within its territory is exclusive and absolute but may be subject to such concept as exterritoriality, usually in the form of diplomatic immunity. This authority may also be extended outside of its territory under the extraterritoriality principle subject to the grant of authority by another state (Dixon 143-144, 146). Since Gabrielle was a worker in UK prior to her death with a valid working visa, she was subject to its jurisdiction. Thus, under the EU law she was supposed to be subject to its protection by implication and extension. Her mere presence within the UK jurisdiction entitled her to the rights reserved under the EU law. The same was true in the case of Karl while he was temporarily in UK under a tourist visa. His presence within the country’s jurisdiction had entitled him to protection under the EU law. In the event of failure of the UK government to protect them as provided by the terms of the EU Charter, gives them the right to file a complaint before the European Court of Justice. The usual procedure is for individual litigants to challenge in the country’s courts the failure of the State to apply Community law and if the court needs assistance to rule on the issue before it, it may refer the matter to the European Court of Justice under Article 234 of the EC Treaty (Weatherill 2007 95). In line with the above, Gabrielle could have gone to a UK court to file a complaint against her employers for their discriminatory treatment re her salary. Under the Article 15 of the European Charter, “nationals of third countries who are authorised to work in the territories of Member States are entitled to working conditions equivalent to those citizens of the Union” (§(3)) and Article 21 of the said law prohibits discrimination on the ground of sex, nationality and race, among others. On the other hand, Karl could have filed the appropriate case against Muriel for the death of his sister and the subsequent conspiracy of Muriel, Bill and Charles in hiding her dead body. According to Article 1 of the aforesaid law, “Everyone has the right to life.” Another way of acquiring rights under the EU law is to seek redress in the European Court of Human Rights in Strasbourg. Although the ECHR is not strictly a part of the EU, yet the European Council which created the ECHR are also the same signatories to the EU and the latter have adopted it and EU members are also compelled to respect the convention on human rights by some treaty. In the case of the UK, it has integrated into domestic law the provisions of the Convention rights such that a complainant is save from the trouble of going to Strasbourg and instead may bring the case within UK (Chandler 2003 8). Assignment 2 Q5. Define a legal 'duty of care'. Can you provide three examples of a potential breach of such a duty of care in the 'Critical Contexts' story? Why does Karl almost certainly not owe a Legal Duty Of Care To his young and vulnerable sister? The concept of legal duty of care was first laid down by the courts in the case of Donoghue v Svenson [1932] AC 562 and was formulated as the “neighbour principle.” Donoghue was the famous case of a woman who drank a bottle of ginger ale and who found, as she was about to consume all of its contents, that there was a rotting snail at the bottom of the bottle. In finding for the ill-fated woman, Lord Atkins had a chance to formulate the now famous “neighbour principle” as a means of establishing whether duty of care exists in a situation or not. He said: “You must take reasonable care to avoid acts and omissions which you could reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? ...any person 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 and omissions which are called in question” (Donoghue v Svenson [1932] AC 562). The emphasis in this test is whether the impact of the act or the omission falls directly upon another (cited Harpwood 2000 22-23; Kelly et al 2005 234-235). Subsequently, the Donoghue test was expanded into the two-way test in which the person acting or omitting can be made liable for the duty of care if the other person is close enough to the respondent that had the latter been taking enough notice, he would have known that his act or omission will affect the former and if this is the case, do factors exist that that could justify, exempt or limit the liabilities of the latter on the former. The two-way test was formulated in the case of Anns v Merton LBC [1978] AC 728, which was about the structural failure of a building, the plan and construction of which was approved by the local borough council. The court ruled that the council was negligent because it failed to exercise duty of care in inspecting the soundness of the building plan before finally approving it (Kelly et al 2005 235). In subsequent cases however, the Anns case was seemingly relegated and the court held in the case of Caparo Industries plc v Dickman [1990] 2 AC 605 that there is no single or simple blueprint that can be employed uniformly in all cases to determine whether the duty exists but rather each case must be examined by the court individually guided only by the so-called three-way test: first, a determination if there was a duty; second, if yes, the existence of a breach of that duty, and; third, a connection between that breach and the injury, which must not be remote (cited Harpwood 2000 23). In the story The Night Mary Poppins Died, there are at least three instances of potential breach of the duty of care that can be legally claimed in courts as discussed in the cases of Donoghue, Anns and Caparo. Two of these instances are related to the Zero Mining incident, and the third is related to the death of Gabrielle in the hands of Muriel. As narrated in the story, Zero Mining, a huge corporation, was engaged in mining in Congo when its underground tunnel collapsed and as a result, fifty men underneath became casualties among them boys as young as 12 year-olds, and the community’s drinking water was infected with the chemical waste that seeped into it from the collapsed mine. The relatives of the fifty men who perished, the people who directly suffered from ailments due to the contaminated water and the nearest relatives of infants and others who died because of the same contaminated water can sue the company for tort on the ground of legal duty of care or for failure to observe the stringiest measures to ensure the safety of their workers and the community where the mine was located. The duty of care reposed on the employer is explicitly provided for in the Health and Safety Work Act of 1974 which imposed upon the latter the duty of care on its employees, and to persons other than his employees. The duty of the employer towards its employees in keeping the workplace reasonably safe at all times was expounded in the case of Wilson & Clyde Coal Ltd v English [1937] 3 All ER 628 where a haulage plant came down crushing on a miner while the latter was working in the company premises. The court held that an employer is bound to ensure the safety of his employees in the work place and this obligation is three-fold: qualified staff force; materials that are satisfactory and; supervision that is effective and systematic. Also as an offshoot of the same incident, the members of the community affected by the seepage of chemical waste into the local river can also make a claim on the basis of duty of care. This is because under the Safety Work Act of 1974, the employer is also liable to persons other than his employees who are affected by the conduct of his business. The implication here is that the lack of safety measures found in the Zero Mining premises re failure of proper risk assessment of company materials and personnel has led to the injury of the members of the community. Essential in environmental cases is to pass the remoteness test in which the plaintiff must prove that the injury caused to him is foreseeable by the defendant. In the case, for example, of Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, the court denied the plaintiff relief because the remoteness test failed to make the defendant liable. In that case a water company discovered that water was being contaminated by an organochlorine solvent it traced from a tannery 1.3 miles away. The court favoured the finding that a reasonable supervisor under the employ of the tannery would not and could not have foreseen that the solvent would leak into the water source from the tannery floors since the only foreseeable danger at that time was if the solvent evaporates and the villagers might be overcome by it. In the present case, the case by the community against Zero Mining would prosper if it is able to prove that it is foreseeable that any collapse or damage of the mining that would result in the leakage of waste material would endanger the community’s water system. Another potential prospect for a breached duty of care in the story is the killing of Gabriel by Muriel, the latter thinking that she was holding only a toy gun. The death of Gabriel may fail as a homicide if brought to court. Homicide is attended by the elements of mens rea and actus reus. Actus reus, which refers to the wrongful act was present because there was actual death but the element of actus reus, which refers to the intent or the mental state of the killer to want to kill the victim is lacking (. Muriel may cite as a defence that she had no intent to kill or to cause grievous because she thought that the gun was a toy gun and as a matter of fact her last words spoken to Gabriel as she pointed the gun to her was: “You will leave tomorrow and never come back. If you do I will kill you. Do you understand?” The implication is that she was terminating Gabriel’s services and ordering her to leave the house the next day which does not make sense if she intended to kill her that fateful night. In the event a homicide case fails, the community members affected with the water contamination may file a case against Zero Mining for breach of that duty. Assignment 3 Q7. What obligations under international law does the UK government owe to Gabrielle, Sylvia or the Mandox children? There are various international treaties and conventions under which women and children are protected and to which UK are a signatory to. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is one, and was ratified by UK in 17 December 2004 (UN Treaty Collection). This treaty prohibits all forms of discrimination and violence against women in the fields of economic, political, social, cultural, and civil or in any other field and gives emphasis on the equal status of women as against men. Thus, the UK government owed to both Gabrielle and Sylvia the same treatment in employment, in civil and political exercises as the treatment given to men. In addition, the UK owed Gabrielle the protection from sexual exploitation as contemplated by Karl under s. 6 of the CEDAW which urges state parties to enact appropriate measures that “will suppress all forms of traffic in women and exploitation of prostitution of women.” The Convention on the Rights of Child, which covers children below the age of 18 and to which UK has ratified in 16 December 1991 (UN Treaty Collection), endeavours to promote the best interest of children and the protection of their right to life, the right to be cared for, right of identity, right from illicit transfer, right to education and freedom of expression, thought, conscience and religion, freedom from arbitrary interference and all forms of violence, right to access to information, among others. Under this treaty, the UK is bound to protect the Maddox children from all forms of violence and ensure that their childhoods are free from unwarranted and harmful interferences such as the one that happened to one of the Maddox children when Gabrielle took her with her to meet her brother Karl. The Convention on Political Rights of Women also promotes the rights of women to participate in the exercise of suffrage, to hold publicly elected offices, as well as any other public office. UK has ratified this treaty on 27 February 1967 (UN Treaty Collection). Under this treaty, Sylvia was protected in her right to hold high positions in public office such as the Minister of Justice, a position she held before she was killed. On top of all the aforesaid treaties are other UN-initiated treaties which do not distinguish between sexes and ages like the Universal Declaration of Human Rights, which sets out the equality and various rights of all persons equally regardless of sex, race, religion and creed. UK is also a state signatory and has ratified the following treaties under which, Gabriel, Sylvia and the Maddox children are entitled protection to: International Convention on the Elimination of All Forms of Racial Discrimination, which UK ratified on 7 March 1969 and should have protected Gabrielle from a comparatively lower pay from her employers, and; the International Covenant on Economic, Social and Cultural Rights, which it ratified on 20 May 1976. References: (1999). Convention on the Elimination of All Forms of Discrimination against Women. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8-b&chapter=4&lang=en. Anns v Merton LBC [1978] AC 728. Asylum and Immigration Law 1999. Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264. Caparo Industries plc v Dickman [1990] 2 AC 605. Chandler, P. & Waud, C. (2003). Waud's Employment Law: The Practical Guide for Human Resource Managers, Trade Union Officials, Employers, Employees and Lawyers 14th Edition, Kogan Page Publishers. Charter of Fundamental Rights of the European Union. Convention on the Political Rights of Women. UN Treaty Collection. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVI-1&chapter=16&lang=en Convention on the Rights of the Child. http://www2.ohchr.org/english/law/crc.htm. Dixon, M. (2007). Textbook on International Law. New York: Oxford University Press. Donoghue v Svenson [1932] AC 562. European Convention on Human Rights and its Protocols. Harpwood, V. (2000). Principles of Tort Law 4th Edition, London: Routledge. Health and Safety Work Act of 1974. Kelly, D. & Holmes, A. & Hayward, R. (2005). Business Law 5th Edition, Routledge Cavendish. Wilson & Clyde Coal Ltd v English [1937] 3 All ER 628. Brookman, F. (2005). Understanding Homicide. SAGE. UN Treaty Collection. http://treaties.un.org/Home.aspx?lang=en Universal Declaration of Human Rights. Weatherill, S. (2007). Cases and Materials on EU Law 8th Edition. New York: Oxford University Press. Read More