UK Tort Law: Contributory Negligence, Voluntary Assumption, Illegality, and Limitation
Contributory negligence is a term that is dual in its meaning: it can either refer to a contribution an individual has made to an accident or when several parties have been responsible for causing an accident in which another party experienced a loss or an injury. For instance, in Anthony Phee v. James Gordon and Niddry Castle Golf Club, CSIH (2013), the first party was found to hold 70% of the blame while the second was accountable for 30% of the blame.
Voluntary assumption of risk refers to the cases in which a plaintiff was aware of a possible risk; however, it still puts him or herself in a position in which such a risk can cause damage. The voluntary assumption of risk usually has two components: the knowledge of risk and voluntary action to proceed with the risk.
In UK law, the illegality of a transaction (because of legislation or public policy) means that no action that is directly associated with the deal will be considered and reviewed in the court. The key issue regarding illegality occurs when the court does not enforce an agreement in which an innocent party can recover its property that was transferred to another one through a transaction.
Limitation refers to a period of time during which a contract’s party is obliged to bring a claim. Limitation periods have been defined by the Limitation Act of 1980, which allowed actions for torts and contract breaches (e.g., negligence). In McHugh v. Gray, EWHC 1968 (QB) (2007), the claimant sought damages for “personal injuries by a consultant psychiatrist who had a moderate degree of post-traumatic stress disorder” (para. 1). The claimant made an allegation that the diagnosis was not right, which contributed to the damage of his relationships and increased abuse of drugs. As a result, in order not to apply the limitation period under the Act, the judge used discretion even in cases where the prejudice directed at the defendant was minor (McHugh v. Gray, EWHC 1968 (QB), 2007).
Oil and Gas Law: Implied Covenants in Gas and Oil Leases
The term “covenant” refers to an agreement established between two or more parties. An implied covenant is the one that can be reasonably “inferred from the whole agreement and the conduct of parties” (Hall, 2010, p. 313). It is generally recognized that implied covenants exist in any contract, with the most commonly reviewed covenants being implied covenants of fair dealing or hood faith (Hall, 2010). It has been found (in courts) that such an implied duty of good faith can also exist within the context of gas and oil leases. Furthermore, at present, the existence of implied covenants in gas and oil leases is universally accepted, although they are generally not accepted in the transfers of real estate. While regulations regarding implied covenants can vary between jurisdictions, the most recognized ones are duties of reasonable development, drainage protection, and marketing diligence (Theriot, 2005).
The implied covenant of reasonable development means that the lessee has to develop the granted well rationally within the acceptable period of time. The covenant of drainage protection requires the preservation of the rented property from the drainage of the oil and gas pool. Finally, marketing diligence includes selling the produced gas and oil for an acceptable price within the rational term.
Regarding the reasons for the existence of implied covenants, in general, courts have given two explanations. First, implied covenants can play a defining role in filling gaps in contracts that have not been cohesively developed. Second, they aid in promoting equity and fairness for the parties of the contract. Another less commonly spread explanation is that implied covenants of oil and gas contracts serve in the enforcement of public policy (Hall, 2010).
References
Anthony Phee v. James Gordon and Niddry Castle Golf Club, CSIH (2013).
Hall, K. (2010). The continuing role of implied covenants in developing leased lands. Washburn Law Journal, 49, 313-346.
McHugh v. Gray, EWHC 1968 (QB) (2007).
Theriot, R. (2005). Duty to restore the surface (Implied, express, and damages). Web.