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Arbel Efrat - One of the best experts on this subject based on the ideXlab platform.

  • Devalued Liberty and Undue Deference: The Tort of False Imprisonment and the Law of Solitary Confinement
    Allard Research Commons, 2018
    Co-Authors: Arbel Efrat
    Abstract:

    Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of False Imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of False Imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable per se, the tort not impose onerous evidentiary burdens on plaintiffs. Rather, the heavy lifting must be done by government: once the plaintiff proves complete confinement, it falls on prison authorities to demonstrate that the confinement was legally justified. This evidentiary distribution is well-suited to address the profound imbalance of power in the prison setting. Moreover, since the tort of False Imprisonment is designed to prevent unwarranted intrusions on liberty, dignity, and personal autonomy, it can effectively respond to the harms that are typically suffered in segregation. The tort allows prisoners to bring individualized evidence of harm, and to seek remedies for both tangible and intangible losses. If substantial awards are issued, the financial burden might compel much needed change in culture and daily management of segregation. Despite this promise, the tort’s progressive potential has yet to be realized. To date, the courts have shown significant deference to the discretionary authority of prison officials, even in the face of evidence that such authority was improperly exercised. In addition, even in successful cases where unlawful segregation is found, the courts have issued only paltry general damage awards – generally set at $10 per day – on the rationale that a violation of a prisoner’s liberty interests is simply not worth as much as that of the free. This approach is problematic not only for its failure to appreciate the profound harm caused by segregation, but also, for its unprincipled departure from application of the tort in cases involving the unincarcerated

  • Devalued Liberty and Undue Deference: The Tort of False Imprisonment and the Law of Solitary Confinement
    Allard Research Commons, 2018
    Co-Authors: Arbel Efrat
    Abstract:

    The law and practice of solitary confinement continues to be a source of rights violations in Canadian prisons. The practice, formally known as administrative segregation, isolates prisoners for 23 hours a day in dehumanizing conditions of confinement. In this paper, I examine the extent to which the tort of False Imprisonment can compensate prisoners for unlawful or excessive segregation placements. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by segregation none have examined the application of this tort. I argue that because of its focus on liberty, dignity, and personal autonomy, this tort is particularly well suited to address the harms of segregation. To date, however, the tort’s progressive potential has not been realized, for two main reasons. First, rather than maintain the rigorous standards required by the tort, the courts have shown significant deference to the discretionary authority or prison officials, even in cases where the courts accepted evidence that such authority was improperly exercised. In doing so, they have allowed prison authorities to circumvent liability for unwarranted segregation placements, thus effectively authorizing the very violations against which the tort is designed to protect. Second, even in successful cases, the courts have awarded only paltry general damage awards to prisoner plaintiffs, generally set at $10 for every unlawful day of segregation. Their stated rationale for doing so is that a prisoner’s retained liberty is simply not worth as much as the liberty of the free. This approach is problematic not only for its failure to appreciate the lived experience of segregation, but also for its unprincipled departure from the doctrine that governs the application of the tort. Developing these critiques by analyzing the prison cases against those involving the unincarcerated – in which violations of liberty are effectively compensated – I conclude by advocating for a judicial shift in the determination of False Imprisonment cases involving segregation. Against the backdrop of the Supreme Court of British Columbia’s landmark decision in British Columbia Civil Liberties Assn. v. Canada (Attorney General), I argue that such a shift could bring a sea change in Canadian tort law, and advance the law’s promise to effectively protect dignity, autonomy, and liberty

Rosli, Muhammad Noor Firdaus - One of the best experts on this subject based on the ideXlab platform.

  • Aggravated Damages Awards for Medical Negligence: A Need to Strengthen Medical Professionalism
    Universiti Putra Malaysia, 2021
    Co-Authors: Jahn Kassim, Puteri Nemie, Rosli, Muhammad Noor Firdaus
    Abstract:

    Aggravated Damages are awarded by the courts to compensate for injuries to feelings affecting pride and dignity, humiliation as well as mental distress. In Malaysia, this form of damages has been common in cases of assault, False Imprisonment, defamation and malicious prosecution. However, the Federal Court in the case of Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281 has allowed Aggravated Damages to be awarded in medical negligence claims as the court held that such injuries are real injuries affecting a person’s body. This research will employ the Qualitative research method, namely, Content Analysis. The award of Aggravated Damages has presently become a common trend in medical negligence claims in Malaysia. The aggravating factors that have led to the award include: (i) insolent behaviour of the medical practitioner towards the patient and family members causing distress and anxiety; (ii) negative conduct displayed throughout the trial; (iii) failure to follow hospital guidelines; (iv) inaccurate information and dishonesty in documentation; (v) suppression of the patient’s medical records. Such development in the law on medical negligence is worrying and can be viewed as diminishing the core values of medical professionalism in upholding integrity, compassion, altruism, continuous improvement, and excellence in providing care to the patients. Although the working environment may be more hectic and stressful, the medical profession needs to rethink and strengthen the set of values, behaviours as well as relationships that serve as the foundation of public trust in the profession. In all eventualities, medical professionalism should continuously be upheld, preserved, and thrive regardless of the challenging time

  • Aggravated damages awards for medical negligence: a need to strengthen medical professionalism
    2021
    Co-Authors: Jahn Kassim, Puteri Nemie, Rosli, Muhammad Noor Firdaus
    Abstract:

    Introduction: Aggravated Damages are awarded by the courts to compensate for injuries to feelings affecting pride and dignity, humiliation as well as mental distress. In Malaysia, this form of damages has been common in cases of assault, False Imprisonment, defamation and malicious prosecution. However, the Federal Court in the case of Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281 has allowed Aggravated Damages to be awarded in medical negligence claims as the court held that such injuries are real injuries affecting a person’s body. Method: This research will employ the Qualitative research method namely, Content Analysis. Results: The award of Aggravated Damages has presently become a common trend in medical negligence claims in Malaysia. The aggravating factors that have led to the award include: (i) insolent behaviour of the medical practitioner towards the patient and family members causing distress and anxiety; (ii) negative conduct displayed throughout the trial; (iii) failure to follow hospital guidelines; (iv) inaccurate information and dishonesty in documentation; (v) suppression of the patient’s medical records. Such development in the law on medical negligence is worrying and can be viewed as diminishing the core values of medical professionalism in upholding integrity, compassion, altruism; continuous improvement, and excellence in providing care to the patients. Conclusion: Although the working environment may be more hectic and stressful, the medical profession needs to rethink and strengthen the set of values, behaviours as well as relationships that serve as the foundation of public trust in the profession. In all eventualities, medical professionalism should continuously be upheld, preserved, and thrive regardless of the challenging times

Scott, Peter M. - One of the best experts on this subject based on the ideXlab platform.

  • The booster, the snitch, and the bogus False arrest victim: retailers and shoplifters in inter-war America and Britain
    'Cambridge University Press (CUP)', 2021
    Co-Authors: Scott, Peter M.
    Abstract:

    This article examines shoplifting from department stores and variety chain stores in interwar America and Britain. Patterns of shoplifting show strong similarities—with stores facing a predominantly female, and disproportionately affluent, army of amateur shoplifters, together with a much smaller corps of professional thieves. The incidence and characteristics of shoplifting are explored, together with the stores’ legal and other strategies to deter shoplifters. The article also examines why apparently prosperous women had the highest propensity to shoplift. Britain and the United States had strong commonalities in terms of open display retail formats, the methods used to deter shoplifters, and typical legal penalties. However, America had one critical difference—the much higher incidence of a type of store criminal who specialized in deliberately getting apprehended in order to sue the store for False arrest and, often, False Imprisonment, slander, and a range of related charges. This reflected the higher damages typically awarded by U.S. courts compared with their British counterparts, inflated by local antagonism to retail corporations, together with a system—at least in some U.S. cities—whereby corrupt lawyers and judges connived in shoplifting acquittals that paved the way for lawsuits

  • The booster, the snitch, and the bogus False arrest victim: retailers and shoplifters in inter-war America and Britain
    'Cambridge University Press (CUP)', 2021
    Co-Authors: Scott, Peter M.
    Abstract:

    This article examines shoplifting from department stores and variety chain stores in interwar America and Britain. Patterns of shoplifting show strong similarities - with stores facing a predominantly female, and disproportionately affluent, army of amateur shoplifters, together with a much smaller corps of professional thieves. The incidence and characteristics of shoplifting are explored, together with the stores’ legal and other strategies to deter shoplifters. The article also examines why apparently prosperous women had the highest propensity to shoplift. Britain and the USA had strong commonalities in terms of open display retail formats, the methods used to deter shoplifters, and typical legal penalties. However, America had one critical difference – the much higher incidence of a type of store criminal who specialized in deliberately getting apprehended, in order to sue the store for False arrest and, often, False Imprisonment, slander, and a range of related charges. This reflected the higher damages typically awarded by U.S. courts compared to their British counterparts, inflated by local antagonism to retail corporations, together with a system – at least in some U.S. cities - whereby corrupt lawyers and judges connived in shoplifting acquittals that paved the way for lawsuits

Tina Cockburn - One of the best experts on this subject based on the ideXlab platform.

  • The liability of police and bouncers
    2007
    Co-Authors: Tina Cockburn
    Abstract:

    Claims against police for psychiatric injury suffered as a consequence of conduct of investigations and performance of duties* 1. Introduction In 2002, McCullough and Palmer published a report to the Criminology Research Council, Civil Litigation by citizens against Australian police between 1994 and 2002 . The introduction to the report says: "There appears to be an emerging trend towards greater resort to civil litigation against police, combined with a definite trend to substantially larger judgements in favour of plaintiffs. Judicial benevolence towards questionable police practices has diminished and successful civil actions against the police are on the increase (Dixon 1997: 146). According to the Australian Torts Reporter, 'police are now, as never before, becoming targets of civil actions against them by aggrieved citizens' (2000 35-070: 43,072)". As to why the number of claims against police has been increasing, the researchers conclude: "There are a number of factors underlying the increasing significance of civil litigation. All interviewees agreed that greater access to justice through 'no win, no fee' arrangements, increased awareness about rights amongst community members, greater damages awards, and the snowball effect of publicity about successful actions contribute to the increased resort to civil litigation by aggrieved citizens. However, lawyers tended to characterise any increase in civil litigation positively in terms of greater access to justice, and public good in terms of enhanced police accountability, whereas police tended to emphasise the negative impact of litigation in terms of police morale and the drain on public funds. Lawyers linked resort to civil litigation to what they perceived to be lack of effective alternative means of police accountability, while police employees saw no or little connection between other accountability mechanisms and civil litigation, and expressed concern that police were any ‘easy target’ often being sued for 'just doing their job'." The researchers investigated various civil actions in tort against police officers including breach of statutory duty, malicious prosecution, assault, battery and trespass to the person, trespass to land, trespass to goods, Lord Campbell's action, misfeasance in public office, False Imprisonment, False arrest, intimidation and negligence . In this paper it is proposed to limit the discussion to a consideration of recent claims against the police which have been brought in negligence and trespass to the person (assault, battery and False Imprisonment).

  • A renewed interest in intentional torts following legislative changes to the law of negligence
    2006
    Co-Authors: Tina Cockburn, Bill Madden
    Abstract:

    Intentional torts to the person are those torts which involve "intentional or wilful invasions of the physical and mental integrity of the person", such as intentional trespass to the person (battery, assault and False Imprisonment), and can be distinguished from "negligent or careless invasions".1 Although the historical distinction between negligence and trespass is based upon whether the defendant's act is direct or indirect, a trend towards fault-based categorisation of the law of torts has been recognised by a majority of the High Court in Northern Territory v Mengel (1995) 185 CLR 307 at [18]; see also Brennan J at [52]. Given the legislative changes to the law of negligence following the review of the law of negligence,2 and particularly the damages restrictions which have been imposed, there has been renewed interest in the ancient trespass actions. Although difficult issues may arise in intentional tort claims such as proof of intention,3 the extent to which insurance is available,4 and whether vicarious liability will be imposed,5 there may be advantages for plaintiffs who plead intentional torts, particularly trespass to the person. Some of the key legal advantages are that trespass is actionable per se; the defendant bears the onus of proof; the rules of causation and remoteness which relate to negligence actions may not apply to trespass actions; and exemplary and aggravated damages may be awarded.6 In particular, the provisions of the Civil Liability Acts may not apply.

Jahn Kassim, Puteri Nemie - One of the best experts on this subject based on the ideXlab platform.

  • Aggravated Damages Awards for Medical Negligence: A Need to Strengthen Medical Professionalism
    Universiti Putra Malaysia, 2021
    Co-Authors: Jahn Kassim, Puteri Nemie, Rosli, Muhammad Noor Firdaus
    Abstract:

    Aggravated Damages are awarded by the courts to compensate for injuries to feelings affecting pride and dignity, humiliation as well as mental distress. In Malaysia, this form of damages has been common in cases of assault, False Imprisonment, defamation and malicious prosecution. However, the Federal Court in the case of Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281 has allowed Aggravated Damages to be awarded in medical negligence claims as the court held that such injuries are real injuries affecting a person’s body. This research will employ the Qualitative research method, namely, Content Analysis. The award of Aggravated Damages has presently become a common trend in medical negligence claims in Malaysia. The aggravating factors that have led to the award include: (i) insolent behaviour of the medical practitioner towards the patient and family members causing distress and anxiety; (ii) negative conduct displayed throughout the trial; (iii) failure to follow hospital guidelines; (iv) inaccurate information and dishonesty in documentation; (v) suppression of the patient’s medical records. Such development in the law on medical negligence is worrying and can be viewed as diminishing the core values of medical professionalism in upholding integrity, compassion, altruism, continuous improvement, and excellence in providing care to the patients. Although the working environment may be more hectic and stressful, the medical profession needs to rethink and strengthen the set of values, behaviours as well as relationships that serve as the foundation of public trust in the profession. In all eventualities, medical professionalism should continuously be upheld, preserved, and thrive regardless of the challenging time

  • Aggravated damages awards for medical negligence: a need to strengthen medical professionalism
    2021
    Co-Authors: Jahn Kassim, Puteri Nemie, Rosli, Muhammad Noor Firdaus
    Abstract:

    Introduction: Aggravated Damages are awarded by the courts to compensate for injuries to feelings affecting pride and dignity, humiliation as well as mental distress. In Malaysia, this form of damages has been common in cases of assault, False Imprisonment, defamation and malicious prosecution. However, the Federal Court in the case of Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281 has allowed Aggravated Damages to be awarded in medical negligence claims as the court held that such injuries are real injuries affecting a person’s body. Method: This research will employ the Qualitative research method namely, Content Analysis. Results: The award of Aggravated Damages has presently become a common trend in medical negligence claims in Malaysia. The aggravating factors that have led to the award include: (i) insolent behaviour of the medical practitioner towards the patient and family members causing distress and anxiety; (ii) negative conduct displayed throughout the trial; (iii) failure to follow hospital guidelines; (iv) inaccurate information and dishonesty in documentation; (v) suppression of the patient’s medical records. Such development in the law on medical negligence is worrying and can be viewed as diminishing the core values of medical professionalism in upholding integrity, compassion, altruism; continuous improvement, and excellence in providing care to the patients. Conclusion: Although the working environment may be more hectic and stressful, the medical profession needs to rethink and strengthen the set of values, behaviours as well as relationships that serve as the foundation of public trust in the profession. In all eventualities, medical professionalism should continuously be upheld, preserved, and thrive regardless of the challenging times