The Concept of Liability – Damages

The main remedy awarded by the courts is an order that an amount of money be paid to the claimant – this is called damages. The aim in all tort cases with the payment of damages is to put the claimant back in the same position as if the tort had not been committed. Obviously this is not always possible – e.g. serious personal injury claims. 

Damages can be either general or special damages. 

 

General damages are also known as non financial losses – their aim is to compensate for the injury itself. There are two categories – pain and suffering and loss of amenity.

The Judicial Studies Board lays down broad guidelines for the level of damages to be awarded.

 

Special damages are also known as financial losses. Their aim is to repay out of pocket expenses. They will also cover future costs. There are four main categories of special damages:- loss of earnings, medical costs, travel expenses, and damage to property.

 Remember,  a claimant has a duty to mitigate their losses – i.e lessen the damage resulting from the tort. If you have a car worth £500 you cannot claim repair costs of £900 for example.  Further, where a claimant contributes to the negligence through their own actions then this will reduce the amount of damages payable.

 

Additional Reading

 

Again I would encourage you to start revising. Read around the subject. Refer to your revision guides. Remember any questions come and ask me!

 

This will be the last post on the blog for a while as we are now into revision for the exams. See you in A2!

Concept of Liability – Civil Liability

Today we finished our mini trial of Donoghue v Stevenson.

Donoghue v Stevenson is a very important case. It is the foundation of our modern law of negligence. It introduced the “neighbour test” – see Lord Atkins judgement in your handout.

Negligence = duty of care + breach of that duty + resulting damage (or causation) 

The modern three part test was laid down in the Caparo v Dickman. The court must consider:-

1. Whether the consequences of the defendant’s act were reasonably foreseeable. In Kent v Griffiths the harm was reasonably foreseeable; in Bourhill v Young the harm was not reasonably foreseeable.

2. Whether there was sufficient proximate relationship between the the parties – either a legal relationship or physical closeness. In  Hill v CC of South Yorkshire – there was not sufficient proximity between the parties. Compare this with Osman v Ferguson – where it was deemed to be a relationship between the parties.

3. Whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty. In Hill it was decided that it would not be just and reasonable in the circumstances to impose a duty on the police. Compare this with Osman.  Re-read the handout on the recent Van Colle case.  There is no blanket rule on whether the police are under a duty if care – the facts are looked at in each case.

Even if under the Caparo Tests there is a duty of care you still need to show a breach of that duty and that the duty of care has been broken.

It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach. Also specific rules apply if the defendant is a child, a professional or a learner.

For children see: Mullin v Richards 

For professionals see: Bolam v Friern Barnet Hospital

For learners see: Nettleship v Weston

The courts will also consider:-

1. The degree of risk involved – see Bolton v Stone

2. The practicability of taking precautions – see Latimer v AEC Ltd

3. The seriousness of harm – see Paris v Stepney BC

4. The social importance of the risky activity – see Watt v Hertfordshire CC

Even if under the Caparo Tests there is a duty of care – still need to show a breach of that duty – the duty of care has been broken;It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach;Finally the breach of duty must cause damage to the victim. It must satisfy the the “but for” test – but for the defendant’s actions the victim would not have suffered any damage – see Barnet v Chelsea & Kensington Hospital

Even if under the Caparo Tests there is a duty of care – still need to show a breach of that duty – the duty of care has been broken;It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach;The Wagon Mound shows us that a person is responsible only for consequences that could reasonably have been anticipated.  However, the “thin skull rule” means that a defendant will be responsible for the harm caused to a victim with a weakness or predisposition to a particular injury or illness – see Smith v Leech Brain & Co

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Additional Reading

Please refer to your revision guides and your handouts. Have a look at the books in the resource centre. You should have started your revision by now – a little and often is better than leaving it all to the last minute. Practice answering exam questions  – hand them in and I will mark them for you. Take responsibilty for your learning.

The Concept of Liability – The Tort of Negligence

Today we started tort. The law of tort is wide ranging and covers many different aspects. However, you only need to know about the Tort of Negligence for AS Level Law.

Negligence has been defined as “The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant” (L.B Curzon – Dictionary of Law).

A duty of care was originally established by applying Lord Aitken’s “Neighbour” Test from Donoghue v Stevenson. The modern three stage test is laid down in Caparo Industries v Dickman:

1. Were the consequences of the defendant’s actions reasonably foreseeable?
2. Was there a relationship of proximity between the parties?
3. Is is it in all the circumstances, just fair and reasonable for the law to impose a duty of care?

We will continue with our own mini trial of Donoghue v Stevenson on Tuesday. In the meantime, please refer to you revision guides.

Introduction to Liability – Sentencing

Today we carried on looking at the the sentencing procedure. Remember before a court will pass a sentence on an offender it will look at a number of different factors.

Firstly, it will look at the seriousness of the offence. It will consider aggravating and mitigating factors. Refer to your handouts. You will need to know examples of aggravating and mitigating factors.

For example, if the offender has previous convictions then this is an aggravating factor.

The offender’s age or mental status might be a mitigating factor.

The court will also want information on the offender. Background and pre-sentence reports are produced for the court by the probation service or a medical doctor.

The court will then decide on the sentence appropriate to the offence and offender. Judges are given guidance on the length of custodial sentences by the Sentencing Guidelines Council.

There are 5 different sentences available for adult offenders. There are many more sentences available for youth offenders. Most of these are aimed towards re-education, rehabilitation and support for the offender and their families.

The five adult sentences are (look at you handouts for more information):

• discharge – this can be absolute or conditional
• financial – fine (paid to the Government) or compensation order (paid to the victim)
• custodial – concurrent sentences run at the same time, whereas consecutive sentences run one after the other. Remember, an offender will not serve the whole of their sentence – they can be released automatically after a certain period of time – they will also receive reductions in sentence for an early guilty plea
• suspended sentence – up to two years imprisonment can be suspended – it will not take effect unless the offender commits another crime within that time
• Community Sentence – s177 of the CJA 2003 created one community order that can be tailored to fit the needs of the offender. Refer to your revision guides for the full list.

Additional Reading

Your exams are getting close! Take every opportunity to read through your revision guides, your hand outs from class and look at the books in the Resource Centre. Any questions at all come and see me. Remember the revision suggestion box in Room 98.

Criminal Liability – Sentencing

Today we began to look at sentencing. Remember sentencing covers any of the options available to the courts once a defendant pleads guilty or is found guilty. It does not just refer to prison sentences.

The Magistrates’ Court is restricted in the length of prison sentences it can set and the maximum fines it can impose. There are no such limits on the Crown Court unless the sentencing guidelines are laid down by Parliament. eg murder is a mandatory life sentence.

We started by examining the different reasons behind why we punish offenders. These are:-

• Denunciation – society disapproves of behaviour and the offender is punished
• Retribution – society wants revenge for a crime committed
• Deterrence – society aims to make an example of offenders to deter others
• Reparation – the offender makes reparation to society / victim
• Incapacitation – the offender is prevented from committing further offences – this also has an element of protecting the public too
• Rehabilitation – the offender’s behaviour is reformed in order to prevent further offending

The reasons behind sentencing policy changes over the years – usually in line with what society thinks is acceptable behaviour. It is probably not possible to build a fair and just ethos for sentencing on any one theory entirely.  

We will carry on with this topic on Tuesday next week.

Homework – please complete the research exercise on the Prison Reform Trust for Tuesday.

Additional Reading

Again I encourage you to use your revision guides and the books available in the Resource Centre. Please remember to give me your ideas for revision topics.

Criminal Liability – Offences Against the Person

Today we carried on with our examination of offences against the person by looking at

•  s47 assault occasioning actual bodily harm;
• s20 malicious wounding or inflicting grievous bodily harm;
• s18 malicious wounding or causing grievous bodily harm.

All these offences are defined in the Offences Against the Person Act 1861.

For the exam you will need to be able to identify these offences and comment on the actus reus and mens rea required for each one. You will also need to be able to use case law to back up your arguments. You will need to be familiar with the CPS Charging Standards also.

s47 offence

The actus reus for this offence is an assault or battery. There must be actual bodily harm inflicted on the victim. The mens rea for this offence is the same as that for assault or battery. There is no need to prove the defendant intended to injure the victim. All that is required is a simple causal link between the defendant’s actions and the victim suffering an injury (Roberts) 

s20 offence

The actus reus for this offence is a direct or indirect act or omission. There is no need to prove an assault. A wound is defined as a cutting of the whole skin. Grievous bodily harm means serious harm and can include psychiatric harm. The mens rea is the intention or subjective recklessness as to causing some injury (although this does not need to be serious). (Savage and Parameter)

s18 offence 

The actus reus for this offence is a direct or indirect act or omission which causes an injury to the victim. The injury must be a wound as defined or grievous bodily harm. The mens rea is that the defendant has the specific intention to wound or to cause grievous bodily harm  or to resist or prevent arrest. The CPS have a criteria that they use to suggest evidence of intent – for example a repeated or planned attack; selection of a weapon etc.

Additional Reading

As mentioned previously, refer to your revision guides and your handouts. You need to be able to distinguish between the different offences and justify your answers with reference to case law during the exam. If you are unsure or confused about any aspects come and see me – otherwise put suggestions for revision in the box in Room 98.  

Criminal Liability

Today we started to look at non fatal offences against the person, starting with the offences of common law assault and common law battery.

Common Assault

Common assault is the lowest level of offence against the person. It is part of the common law which means it is not in any Act of Parliament but has been built up over centuries through cases and judge made law.

To commit an assault the defendant must intentionally or subjectively recklessly cause another person to fear immediate unlawful violence.

The actus reus requires some words or acts. An omission is not enough. There is no need for physical contact. Examples are: raising a fist; making a threat “I am going to punch you”; pointing a loaded gun at someone (even if it is a replica).

The mens rea for an assault is either the intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused. The test for recklessness is subjective.

Common Battery

This is beyond common assault where the defendant intentionally or subjectively recklessly applies unlawful force to another. Usually a battery follows an assault. You raise your fist, you commit an assault, and then hit the victim – this is the battery. You can have battery without assault – if you are hit from behind for example – you have no fear as you don’t see it coming.

The actus reus requires some force, however slight. It can be continuing (as in Fagan) or can be an indirect act such as laying a booby trap. Unlike assault, a battery can be committed by an omission – Santana-Bermudez.

The mens rea for battery is either the intention to apply unlawful physical force or recklessness that the force will be applied. Recklessness is subjective – the defendant must realise the risk and take the risk.

Additional Reading

Please see my comments above. Remember to hand in any suggestions for revision AND outstanding homework.

Criminal Liability

Today we continued with our examination of actus reus and mens rea concentrating on Causation, the Coincidence of Mens Rea & Actus Reus and the concept of Strict Liability.

Causation

Causation is the direct link from the defendant’s conduct to the consequence to the victim. There are two types of causation; factual and legal causation.

The test for factual causation is set out in R v White (1910) – the “but for” test.

The test for legal causation is set out in Smith (1959) – is the defendant the “substantial and operating cause”.

The chain of causation can be broken if there is an intervening act (novus actus interveniens). This act has to be significant and sufficiently separate from the defendant’s actions.

The following incidents will not break the chain of causation in law:

• Physical characteristics of the victim (Hayward)
• Reasonable consequences of the defendant’s actions (Pagett)
• Reasonable attempts to escape (Roberts)
• Negligent medical treatment (Smith)
• Refusal of medical treatment (Blaue)
• The switching off of a life support machine (Malcherek)
• The victim committing suicide (Dhaliwal)

With regards to medical treatment remember the exceptions laid out in cases such as Cheshire and Jordan.

The Coincidence of Mens Rea and Actus Reus

The prosecution has to prove the mens rea existed at the time the actus reus was committed. This is known as the contemporaneity rule. The actus reus can either be a continuing act or be comprised of a chain of events.

The mens rea can be transferred from one victim to another under the doctrine of transferred malice. However, it cannot be transferred if for a different actus reus.

Strict Liability

Crimes of strict liability do not require full mens rea. Extreme examples of this are “state of affairs” cases otherwise known as absolute liability cases.

Various examples of cases of strict liability:-

• Pirate radio station (Blake)
• Selling alcohol to a drunk person (Cundy v Le Cocq)
• Pollution (Alphacell Ltd v Woodward)
• Possessing a firearm without a certificate (Howells)
• Publishing blasphemous libel (R v Lemon Gay News Limited)
• Selling medicinal products without a valid prescription (PSGB v Storkwain)
• Selling lottery tickets to under 16s (Harrow HBC v Shah)

In Gammon (Hong Kong) Ltd v A-G for Hong Kong the test for strict liability was set out – please refer to you revision guides for more details.

Additional Reading

You should refer to the revision guides and the books available in the resource centre.
You should also start revision for the June exams as we will be working practically up to the exam itself.

Module 3 – The Concept of Liability – An Introduction to Criminal Liability

Today we started Module 3 – The Concept of Liability. We began with an introduction to Criminal Liability.

To be guilty of most criminal offences, it is necessary to show two things – the actus
and the mens rea. Each crime has its own actus and mens rea.

The actus reus is the physical element of the crime. The mens rea is the mental element of the crime – what was the defendant thinking or not thinking about before or during the committing of the crime.

The actus reus can be:-

• An act;
• A failure to act (an omission);
• A state of affairs or strict liability issue.

The actus reus must be a voluntary act – not a reflex action. If there is an absence of fault in an action then a person is generally not liable. The criminal law is usually concerned with fault of the defendant.

There are however, exceptions to these rules – these are known as state of affair cases or strict liability cases. Please refer to your revision guides and class notes for more details.

The normal rule is that an omission or failure to act is not an actus reus. However, there are exceptions to this rule. These are:-

• Where the defendant has a contractual duty
• Where there is a duty because of a relationship – between parent and child for example
• Where a duty has been taken on voluntarily
• Where there is a duty because of the defendant’s official position – e.g. a policeman
• Where a duty arises because the defendant has set in motion a chain of events

Mens rea has different levels. The “highest” form of mens rea is intent where the defendant decides deliberately to commit an offence (see Mohan). There is also indirect intent. To prove this you need to show that the defendant was aware of the risks they were taking and that the defendant undertook a voluntary act which you could be virtually certain would lead to serious bodily harm or death (see Nedrik). Finally, there is recklessness – where a defendant knowingly takes an unjustifiable risk. The test for this was set out in Cunningham.

Please refer to your revision guides and the notes from class for more on these points.

We will revisit these concepts many times throughout this module when we start to look at the individual offences against the person. It is important that you understand these as you will need to apply the law to various scenarios as part of your exam.

Additional Reading

Please look at the revision guides on this topic

Please refer to the books in the Resource Centre

• Hill v Baxter
• Airedale NHS Trust v Bland
• Pittwood Dytham
• R v Gibbons & Proctor
• R v Stone & Dobinson
• Miller
• DPP v Santana-Bermudez

Please remember to hand in your essay on the legal profession after the Easter Holidays.

Please remember the arranged revision day for 10 April 2007