legaleasy

12 May, 2007

The Concept of Liability – Damages

Filed under: Concept of Liability,domestic law,Revision — legaleasy @ 11:58 am

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!

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11 May, 2007

Concept of Liability – Civil Liability

Filed under: additional reading,Concept of Liability,domestic law,Revision — legaleasy @ 11:08 am

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

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.

27 March, 2007

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

19 December, 2006

January Exam!

Filed under: domestic law,Revision — legaleasy @ 8:52 pm

Today we looked at all the cases you need to know for the January Exam. You should attempt the case sort activity provided – this will be good revision.

All the information needed to complete this activity can be found in either;-

1. Previous entries on the Blog;
2. Your notes from class;
3. The additional revision notes provided on each topic;
4. The revision guide provided.
5. Books available for use in the Resource Centre.
Merry Christmas and a Happy New Year!

14 December, 2006

Judicial Precedent – Revision

Filed under: domestic law,Revision — legaleasy @ 8:48 pm

Today we continued with our revision for the January exam on Law Making. We looked at the topic of judicial precedent.

Judicial Precedent in this country is based on the doctrine of STARE DECISIS – this means do not upset whatever has been established. A law report is broken up into the RATIO DECIDENDI and OBITER DICTA. The RATIO is the legal reason for deciding. This is not the same as the verdict. OBITER DICTA are all the other things said in a judgement – including speeches by dissenting judges. A dissenting judge is one who does not agree with the RATIO of the case.

We reminded ourselves of the importance of the Court Hierarchy in the English System. If you answer a question on this topic you will need to know the order of importance of the courts and when they are bound by previous decisions.

Further – you should re-familiarise yourself with the exceptional circumstances of both the House of Lords (use of the Practice Statement 1966) and the Court of Appeal (bound by its own decisions unless on the exceptions set out in the Young v Bristol Aeroplanes Case are met).

We reminded ourselves that precedent can be binding, persuasive or original. There are four different types of persuasive precedent – decisions from lower courts; decision of the Judicial Privy Council; decisions from outside the English jurisdiction; and obiter dicta in other judgements.

A judge can avoid following a precedent in a number of ways – overruling, reversing or distinguishing.

Overruling is used when a higher court overrules the decisions of a lower court in an earlier case. Remember the ability of the House of Lords and the Court of Appeal to overrule previous decisions.

Reversing is when a higher court reverses the earlier decision in the same case of a lower court – for example a decision is reversed on appeal.

Distinguishing occurs when the facts of the case before the court are sufficiently different to an earlier precedent – the judge can distinguish it.

You will also need to know how to evaluate our system of precedent – that is to say – comment on its advantages and disadvantages.
Additional Reading

Look at previous entries on this topic for more information.

You will find all that you need to know by looking in your notes and the revision guides and sheets provided.  Any problems – come and see me.

12 December, 2006

Domestic Legislative Process – Revision

Filed under: domestic law,Revision — legaleasy @ 10:31 pm

Today we looked at the topic of the domestic legislative process.

Parliament is made up of the House of Commons, the House of Lords and the Crown.  Each body has a different role to play in the formal process statute creation. 

The main role of the House of Commons is to propose, draft and scrutinise legislation.  The House of Lords main function is to act as a check upon this draft legislation and add any necessary refinements; or even make the government reconsider in entirety.  The role of the Crown is limited.  The Queen must give Royal Assent to a bill, but this is seen as a formality.  It has been described in the past as a rubber stamping exercise. 

 We also looked at the various different types of bill (public, private, private-members bills) and the process that a piece of draft legislation has to go through to become law.  It is important that you are aware of and understand the various stages a bill passes through from its First Reading to the Royal Assent. 

Please see previous entries on this topic.  Please also refer to the revision sheets and the revision guide for further reading. 

7 December, 2006

Delegated Legislation – Revision

Filed under: domestic law,Revision — legaleasy @ 6:05 pm

Today we revised the topic of Delegated Legislation. This is a good topic to study as it usually always turns up in the exam.

Delegated legislation is law made by another person or body other than Parliament under an enabling or parent act.

You will need to know about the three main types of D.L;-

1. Orders in Council – made by the Privy Council and generally only used in times of war or in exceptional circumstances.
2. Statutory instruments – made by Government ministers. These are the most common type of D.L and an example is the rules governing Legal Aid.
3. Bye-laws – these are made by local government or other bodies that deal with the public (for example airport authorities). An example would be the ban on drinking in public places.

You also need to know the advantages (flexibility and time saving) and disadvantages (undemocratic and lack of scrutiny) of D.L as well how D.L is controlled (generally by the parent act and also by Parliament and the Courts).

You will find all that you need to know by looking in your notes and the revision guides and sheets provided. Please look at previous entries on the Blog too.

Any problems – come and see me.

5 December, 2006

Statutory Interpretation – Revision

Filed under: domestic law,Revision — legaleasy @ 5:55 pm

Today we started revising for the January exam on Law Making. We started with the topic of Statutory Interpretation.

We reminded ourselves of the two main approaches – the Literal Approach and the Purposive  Approach.There are three main rules of interpretation – Literal, Golden and Mischief.
 
The Literal Approach respects Parliamentary Sovereignty and requires judges to apply the law not make it. This approach is still favoured, on the whole, in the UK.

The Purposive Approach is a far more flexible approach and is favoured by Europe and the ECJ. It allows judges to look behind the literal meaning of the words of an Act of Parliament to determine the meaning or purpose of the law. As a result of our membership of the EU  we are moving slowly towards a more purposive approach in the UK.

Both approaches have their advantages and disadvantages – see previous entries on this subject for more details.

The Literal Rule – the plain, ordinary meaning of the words are taken and applied.

The Golden Rule – this is a modification of the Literal Rule that means a judge can choose between different meanings of a word to avoid an absurd or abhorrent result. The Golden Rule has a wide and a narrow application. Again see previous entries on this topic for further discussion.

The Mischief Rule – looks at the mischief the Act is trying to cure and uses this when interpreting the language. See previous entries for more details.

Revision sheets summing up all the approaches, rules, rules of language and presumptions were given out. Re – read through these carefully in your own time. They will give you the information you need to answer a question on this topic in the exam. It is almost certain that a question on this will come up in the exam.

Next lesson we will look at the topic of delegated legislation.

Additional Reading

Look at previous entries on this topic for more information.
Try and complete the re-drafting exercise on the worksheet given out – see how difficult it is to draft legislation without leaving loopholes or areas of doubt.

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