Template:Liability ladder: Difference between revisions
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===The ladder of liability=== | ===The ladder of liability=== | ||
In some strands of legal endeavour (notably in the [[criminal law]] and the [[tort]]ious world of [[tort|civil wrong-doing]], one’s [[mens rea|mental state]] is important in assessing one’s responsiblity; in others (principally the cool and dispassionate law of [[contract]]) it is — for the most part — not. | |||
Where the '''[[Inadvertence|inadvertent]]''' is blameless, neither knowing the risk she runs, nor being reasonably expected to be able to anticipate it; and the '''[[Negligence|negligent]]''' has some civil, civic responsibility for what befalls his [[neighbour]] on the premise that, since that odious hypothetical fellow plucked from the pews of the sacred [[Man on the Clapham Omnibus|Clapham omnibus]] would have seen it, so should he, even though in point of fact he did not; the '''[[gross negligence|grossly negligent]]''' is a poor, confused, careless American; the '''[[reckless]]''' sees the risk, all right, and decides to plough on and take it, notwithstanding, that she might have no particular wish or expectation that a calumny should befall ''anyone'', least of all the [[plaintiff]]. | Where the '''[[Inadvertence|inadvertent]]''' is blameless, neither knowing the risk she runs, nor being reasonably expected to be able to anticipate it; and the '''[[Negligence|negligent]]''' has some civil, civic responsibility for what befalls his [[neighbour]] on the premise that, since that odious hypothetical fellow plucked from the pews of the sacred [[Man on the Clapham Omnibus|Clapham omnibus]] would have seen it, so should he, even though in point of fact he did not; the '''[[gross negligence|grossly negligent]]''' is a poor, confused, careless American; the '''[[reckless]]''' sees the risk, all right, and decides to plough on and take it, notwithstanding, that she might have no particular wish or expectation that a calumny should befall ''anyone'', least of all the [[plaintiff]]. | ||
The '''[[Intention|intender]]''', in contrast to all those above, does what he does as a matter of cold-blooded, contemptuous [[Calculated|calculation]].<ref>This use of the word “calculation” might upset some tort lawyers, for in legal terms to be “[[calculated]]” means expected to happen as a matter of probability, rather than mendacious design. Odd, really.</ref> | The '''[[Intention|intender]]''', in contrast to all those above, does what he does as a matter of cold-blooded, contemptuous [[Calculated|calculation]].<ref>This use of the word “calculation” might upset some tort lawyers, for in legal terms to be “[[calculated]]” means expected to happen as a matter of probability, rather than mendacious design. Odd, really.</ref> | ||
Now the standards as between crimes and tort diverge. We know at one end are the innocent, faultless lambs, at the other wanton brigands; but how the varying stages between fit together is by no means clear. | |||
{| class="wikitable" | |||
{{aligntop}} | |||
! Criminal standard !! Civil standard !! Description | |||
{{aligntop}} | |||
| '''[[Blameless inadvertence]]''' || Blameless inadvertence || Neither intended, wanted, foresaw, nor can reasonably have been expected to foresee the calamity that in fact came about. | |||
{{aligntop}} | |||
| '''[[Negligence]]'''||Negligence ||A reasonable person in that position would have foreseen the incipient calamity which would come about by following this course of action, but our hero, in actual fact, did not. Ergo, an unreasonable person. | |||
{{aligntop}} | |||
| — || Gross negligence|| Even a faintly moronic person in that position would have foreseen the incipient calamity which would come about by following this course of action but our hero in actual fact did not. Ergo, a stridently moronic person. | |||
{{aligntop}} | |||
| — || '''[[Wilful default]]''' || Somewhere between negligence and recklessness maybe? Or is it intention? who knows.{{aligntop}} | |||
| '''[[Recklessness]]'''|| — ||Our hero ''did'' foresee the incipient calamity and, while not wanting it, boxed on regardless. | |||
{{aligntop}} | |||
| '''[[Intention]]'''|| — || Not only foresaw the calamity but acted fully intending it to come about. | |||
|} | |||
===In brief=== | ===In brief=== | ||
*'''[[Inadvertence]]''': To be unaware of a risk which one could not reasonably have been expected to be anticipate. | *'''[[Inadvertence]]''': To be unaware of a risk which one could not reasonably have been expected to be anticipate. | ||
Revision as of 15:59, 2 July 2021
The ladder of liability
In some strands of legal endeavour (notably in the criminal law and the tortious world of civil wrong-doing, one’s mental state is important in assessing one’s responsiblity; in others (principally the cool and dispassionate law of contract) it is — for the most part — not.
Where the inadvertent is blameless, neither knowing the risk she runs, nor being reasonably expected to be able to anticipate it; and the negligent has some civil, civic responsibility for what befalls his neighbour on the premise that, since that odious hypothetical fellow plucked from the pews of the sacred Clapham omnibus would have seen it, so should he, even though in point of fact he did not; the grossly negligent is a poor, confused, careless American; the reckless sees the risk, all right, and decides to plough on and take it, notwithstanding, that she might have no particular wish or expectation that a calumny should befall anyone, least of all the plaintiff.
The intender, in contrast to all those above, does what he does as a matter of cold-blooded, contemptuous calculation.[1]
Now the standards as between crimes and tort diverge. We know at one end are the innocent, faultless lambs, at the other wanton brigands; but how the varying stages between fit together is by no means clear.
| Criminal standard | Civil standard | Description | |||
|---|---|---|---|---|---|
| Blameless inadvertence | Blameless inadvertence | Neither intended, wanted, foresaw, nor can reasonably have been expected to foresee the calamity that in fact came about. | |||
| Negligence | Negligence | A reasonable person in that position would have foreseen the incipient calamity which would come about by following this course of action, but our hero, in actual fact, did not. Ergo, an unreasonable person. | |||
| — | Gross negligence | Even a faintly moronic person in that position would have foreseen the incipient calamity which would come about by following this course of action but our hero in actual fact did not. Ergo, a stridently moronic person. | |||
| — | Wilful default | - style="vertical-align:top; text-align:left;" | Recklessness | — | Our hero did foresee the incipient calamity and, while not wanting it, boxed on regardless. |
| Intention | — | Not only foresaw the calamity but acted fully intending it to come about. |
In brief
- Inadvertence: To be unaware of a risk which one could not reasonably have been expected to be anticipate.
- Negligence: To be unaware of a risk which a reasonable person on one’s position ought to have anticipated.
- Gross negligence: A meaningless concept that excites US attorneys but irritates English ones.
- Reckless: To be aware of a risk, and to take it anyway, even though you don’t necessarily want the risk to come about.
- Intention: To be aware of a risk, and to run it with the intention that it comes about.
- ↑ This use of the word “calculation” might upset some tort lawyers, for in legal terms to be “calculated” means expected to happen as a matter of probability, rather than mendacious design. Odd, really.