EXAM - unit 1 Flashcards

Question

what is the difference between damage and damages?

Answer 1

damage is a legal concept which is the loss or injury suffered as a result of breach of duty whereas damages is the amount of money that is awarded to compensate the victim for their loss or injury

Answer 2

Damages can be divided into general damages and special damages

Answer 3

Special damages which are also referred to as pecuniary losses are financial losses or losses that can be calculated at the time of the trial. This includes a loss of salary to date, damage to property and expenses such as travelling to the hospital for appointments as a result of an accident

Answer 4

General damages refer to non-pecuniary losses that are all other forms of financial compensation such as loss of future earnings, pain and suffering, loss of amenity and future medical costs. There are two elements to general damages: - Damages for the effects of the injury - pain, suffering and loss of amenity. - Damages for future financial loss - loss of future earnings and the effect of loss of expectation of life

Answer 5

In general damages, the person must take their victim as they find them as the amount will vary with the claimant in each case. e.g scaring of a normal person's face will end up going in a smaller sum compared to scaring the face of an actor or model who cannot work in the same roles as before as part of their work is to use their face.

Answer 6

pecuniary losses refers to easily calculated financial losses. This relates to damages to goods and lost earnings, and also may expenses incurred as a result of an accident, such as those relating to travel

Answer 7

non pecuniary losses damages relate to non-financial losses / damages that aren't rooted in financial loss, such as injuries, pain, grief, suffering

Answer 8

Pain and suffering is very difficult to calculate as every case is different and varies. The amount will vary with the individual but will take into account medical reports and other evidence in court. calculations for pain and suffering and loss of amenity often use calculations based on awards in previous cases. Lawyers may also look at the judicial college's guidelines to give indication on the most likely amount that will be awarded. The test is subjective (based on personal feelings and opinion) and the court will assess the claimant's past and future position as at the date of trial.

Answer 9

Loss of amenity is the reduction in the ability to perform everyday tasks and enjoyment of life. This can include all manner of interference with hobbies, pastimes, loss of a skills and an impact on life, as well as everyday tasks such as getting dressed. A claimant is not compensated for the physical injury itself. The compensation is for the loss suffered as a result of that injury such as not being able to reach the full earnings potential. The amount calculated from awards in comparable cases that has been decided in courts. loss of amenity can cover compensation for being confined in hospital and/or being left with a disability that stops you from doing things you could do before the injury occurred

Answer 10

The distinction between damages for loss of amenity and damages for pain and suffering can be seen in the example of someone in a coma. Clearly, when someone is in a coma there is total loss of amenity as the the victim can do nothing. However, little or nothing would be awarded for pain and suffering since the claimant has no subjective awareness of the pain and suffering

Answer 11

Special damages for loss of earnings up to trial are relatively easy to calculate. Future losses are more difficult to calculate as they can only be estimated. However, the calculations used are designed to reflect an appropriate amount. Claims for loss of earnings are common in personal injury claims and can be very large and very complicated depending on the circumstances of a defendant e.g. a student who is minor - how would they assess their loss of future of earnings or celebrities?

Answer 12

In some cases, the impact of an injury is such that the claimant requires professional nursing care and future medical treatment. In claims arising from severe brain injury, this may be the biggest element of the claim. All the court can do is estimate the cost of this and include it in the award.

Answer 13

Every claimant is required to mitigate their loss. This means claimants are required to take reasonable action to keep their losses to a minimum and defendants cannot be forced to pay for avoidable loss. e.g. if involved in a car crash you may hire a car while the original car is repaired. The person who hit you would expect to hire you a replacement car equivalent to the cost of the car you owed and must be in reasonable expense. This means you must keep your losses to a minimum and follow the original aim of compensating the claimant to put them back in the position they were in before the negligence.

Answer 14

Contributory negligence occurs when the claimant is found to be partly responsible for the damage they suffered. The main principle of contributory negligence is that if the claimant has contributed to the losses, then a proportion of the damages will be lost. The proportion lost depends on the amount to which the claimants own acts are negligent. The reduction can be between 0% and 100% However, there are some general guidelines to contributory negligence. For example, not wearing a seat belt does not cause an accident but it can contribute to the extent of the injury. A similar principle could apply where a person knowingly allows themselves to be driven in a car with a drunk or drugged driver.

Answer 15

The law reform (contributory negligence) Act 1945 The act of parliament sets out the law. The court can reduce damages: 'to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage' The court is given guidance so that it can reduce damages 'to such extent as the court thinks just and equitable (reasonable) having regard to the claimant's share in the responsibility for the damage. This means that every case depends on the evidence and all relevant circumstances. There are occasions where the court can find 100% contributory negligence.

Answer 16

Sayers v Harlow Urban District Council (1958) Legal principle: A proportional amount of the damages can be lost if the claimant contributed to their damage or loss as in the case, the court decided that she had contributed to her fall by her own negligence as she tried to escape from the locked cubicle and thus because of this she lost 25% of her damages because of contributory negligence.

Answer 17

There are number of examples where contributory negligence is seen automatically. One of them is the failure to wear a seatbelt in a vehicle fitted with one. However, the court still takes into account whether the seatbelt would have: 1 - prevented injury or 2 - reduced the severity of the injury, or 3 - made no difference to the injury Typically the three circumstances above would result in a 25% reduction, a 15% reduction and no reduction in the damages awarded

Answer 18

Damages are usually paid either in a lump sum for special damages or in a structured settlement used for larger awards.

Answer 19

Damages are compensation and therefore need to be paid in such a way that the claimant is not advantaged or disadvantaged. For example, a claimant is potentially advantaged if a very large sum is paid up front to cover future needs but those needs never occur because the claimant dies shortly after they receive the sum. This would not reflect the costs and losses to the claimant as a result of the accident and could encourage some to hasten the death of the claimant in order to inherit the money.

Answer 20

A lump sum is when all damages are paid all at once. The only problem for the claimant is that the defendant may not have enough money to pay the damages if not insured and for very large amount of damages, it may be better for both parties to organise payment through the use of a structured settlement. In most cases, this is not problematic as most claims are settled by insurance companies. However, if not paid through an insurer, the claimant may have difficult getting the payment from the defendant. Special damages are always paid by a lump sum.

Answer 21

A structured settlement is a settlement usually used in accident and medical negligence claims as an alternative to the payment of a lump sum by the defendant to the claimant. A structured settlement may include: - interim payments - to cover expenses already made - regular instalments - usually paid through an annuity so there is a regular income throughout the injured person's life - a further lump sum payment to cover extra costs that are not covered by the annuity payment

Answer 22

there are often three parts to a structured settlement: 1- a lump sum payment to cover costs and expenses met by the claimant before settlement of the claim. (This would include medical and legal costs up to the date of the settlement of the claim - in other words, the special damages) 2- A series of regular monthly payments, usually paid through an annuity as part of the general damages (This usually lasts for the lifetime of the claimant and is designed to meet future care costs and loss of earnings) 3- A further lump sum to cover contingencies that may not be met by the general damages annuity payments

Answer 23

A structured settlement may be used so that: - the injured person does not have to manage a large sum of money - there is less chance of the claimant 'blowing' the money and becoming destitute - there is less risk of running out of money for care - the claimant will get compensation and not more than they need - life expectancy is not an exact science so finances are certain for the future (Walton v Calderdale NHS trust 2006 - the trust paid the claimant who had a life expectancy of 70 years when the settlement of the case was reached - an annual payment of £50,548, index linked, in respect of his annual costs rather than a lump sum - family and friends cannot exploit the injured person and do not 'get a bonus' on the death of a claimant.

Answer 24

REDUCTION IN DAMAGES: Mitigation of loss: claimant cannot claim for loss that could've been avoided by the taking reasonable steps - marcroft v scruttons - Contributory negligence: claimant's damages are reduced according to their level of blameworthiness - Brannan v Airtours

Answer 25

The burden of proof refers to where the claimant must prove their case on a balance of probabilities. This standard means the court must be satisfied that the event in question is more likely to have occurred than not.

Answer 26

Res ispa loquitur is a latin expression meaning 'the thing speaks for itself'. This principle has been developed for situations where negligence can only be interred from what happened and the exact cause cannot be proved by the claimant. Typically, this is because the injured person was unconscious at the time of, as a result of the incident.

Answer 27

TEST FOR RES IPSA LOQUITUR: applied in mahon v osborne The test to see if res ipsa loquitur applies requires three things to be proved by the claimant: 1 - the thing that caused the damage was under the sole control of the defendant 2 - the incident is one that would not have happened unless someone had been negligent. 3 - there is no other obvious reason as to why the incident occurred

Answer 28

the burden of proof shifts from the claimant to the defendant if the principle of res ipsa loquitur applies. This means that the defendant would have to show they were not negligent by explaining how the incident happened

Answer 29

- solicitors - barristers - citizens advice bureau - law centres - insurance companies - the internet - trade unions - civil legal advice (CLA) - government funded help by phone/online

Answer 30

solicitors are the main legal professionals that tend to have direct contact with the public and act as sources of advice as they are the most experienced compared to other sources of advice. solicitors work in many different areas of law and offer many different services such as acting as confidential advisers providing expert legal advice and assistance in a range of situations, protecting the rights of individuals, making and defending claims arising from negligence which results in personal injuries etc.

Answer 31

solicitors are the main legal professionals that tend to have direct contact with the public and are regulated by the law society. They act as sources of advice as they are the most experienced compared to other sources of advice. Solicitors act as confidential legal advisers who provide expert legal advice and assistance in range of situations and areas of law. Solicitors are able to advise whether a claim is likely to be successful in court and if the claim is weak help the client try to settle it as a soon as possible, explain strengths and weaknesses of their clients case, can help to obtain evidence and reports such as accident and medical reports, draft the claim to be issued in court, hold confidential discussions with their clients.

Answer 32

if the claim is for a small amount, the solicitor may be able to do advocacy in court on the behalf of their clent. if the case is for a large amount, the solicitor may suggest in instructing a barrister to deal with the advocacy. solicitors will either be paid on a 'no win no fee' basis (in which they must be sure the case stands a strong chance of succeeding) or a rate based on the amount of time they spend on the case

Answer 33

ADVANTAGES : - solicitors are professional - easy to access - confidential - properly regulated and insured concerning poor work such as a delay, mistakes or overcharging. DISADVANTAGES: - can be expensive - local firm may not specialise in the area you need

Answer 34

Barristers are specialist legal advisers and court room advocates. Barristers are useful source of advice as they are independent, objective and trained to advise clients on the strengths and weaknesses of their case and carry out advocacy in court. They also have special knowledge and experience in and out of court which can make a substantial difference to the outcome of the case. Early advice can often save clients the cost and worry of an unnecessary trial. A high proportional of civil cases are settled out of court and instructing a barrister greatly strengthens the clients hand at negotiation. Even at a trial, whether in a civil or criminal court, a well-argued case and good cross - examination will impress a judge and if relevant a jury Barristers are usually contacted through a solicitor but in civil accident claims can be contacted directly by a client through the 'direct access scheme'. Barristers are usually paid on a fixed fee based on the amount of work they are likely to carry out and time spent on the case

Answer 35

ADVANTAGES: - professional - specialist - confidential - properly regulated and insured concerning poor work such as delay, mistakes or overcharging DISADVANTAGES: - can be expensive - can only access through your solicitor - not always local

Answer 36

citizens advice is a national and independent charity offering free, impartial and confidential advice and guidance on a range of issues and problems not limited to legal matters. They provide face to face meetings at over 3,000 locations across the uk. citizens advice can offer advice and assistance on a range of civil cases, permit lawyers to attend meetings to provide more specialist advice, can write letters on behalf of and complete forms for clients, can negotiate on the behalf of clients, can refer more complicated disputes to a local lawyer and operate a comprehensive website giving advice on a range of consumer issues.

Answer 37

ADVANTAGES: - free - wide range of advice available - relatively local - get quick advice ready for the next step (if necessary) DISADVANTAGES: - may not be able to do more than suggest going to a solicitor if the case is very complex

Answer 38

Law centres support people who cannot afford legal representation. There is a national network but each law centre will operate individually. Law centres must fundraise and obtain grants for continued funding, use lawyers who may work pro bono or as part of wor experience, can offer initiation advice on a range of civil matters and on specialist issues and law centres are prepared to pursue a full case for a client and represent them before court or tribunal. Law centres also offer legal advice, casework and representation to individuals and groups and some law centres have other areas to expertise.

Answer 39

ADVANTAGES: - cheap or free - expert in their field of work - often open at convenient times DISADVANTAGES: - under pressure for funding - relatively few exist (about 50) - not necessarily local

Answer 40

Insurance companies can offer legal advice or representation as when you take out an insurance policy, the insurance company will often offer you extra insurance to cover any legal expenses you might incur. (legal expenses insurance) can help cover the cost of making a claim and it is usually included freely. If you make an insurance claim that leads to any kind of legal dispute, the insurance company will instruct a solicitor on your behalf when they make a claim under the policy and meet their fees. There is always a limit to how much you can claim under the policy usually £50,000 or £100,000 However, policies like this are usually optional and will cost a lot but can save you a lot of money if you face solicitors or barristers fees in the future

Answer 41

ADVANTAGES: - easy to access - can specialise in particular types of claim - company can instruct high qualify advisers/lawyers - no extra payment required as insured DISADVANTAGES: - client may pay a premium for the policy, whether they use it or not - dealt with at a distance - sometimes limited range of cases dealt with - you cannot choose who will represent you - legal support can be limited as some situations cannot be covered - advice cannot be given face to face

Answer 42

The internet can give a wealth of advice on legal matters. However, you must be certain that the advice is accurate and that the website offers advice based on English law rather than US law or Scottish law.

Answer 43

ADVANTAGES: - instant availability - wide range of information available - free - publicity may encourage provider to settle early - may find others with similar problems to share experiences DISADVANTAGES: - not necessarily based on law in England and wales and may be based on law or systems on other parts of the world - not necessarily accurate as information or advice may be inaccurate - sometimes incomplete advice unless the user signs up and pays

Answer 44

going to court can be very expensive as court fees are payable in addition to lawyers fees, and financial help is not always available. However, there are ways in which someone can fund their case such as - own resources - insurance - state funding - conditional fee arrangements - trade union memberships - citizens advice bureau - pro bono

Answer 45

if someone is able to pay their own legal fees through their own resources, then they are able to choose the best legal service for their needs providing flexibility and benefits. These benefits can include the person being able to choose how much they want to pay in total, the person can negotiate a fee with a lawyer, the lawyer will charge based on an hourly rate multiplied by the amount of time spent on the case and if the person wins the case they can often recover the amount of the costs they have paid out in addition to the compensation

Answer 46

Advantages: - person can have total control over their case as they choose the best legal service for their needs - person can choose how much they want to pay in total and negotiate a fee with a lawyer disadvantages: - using your onw resources can be disadvantageous as the other side may start to rely on the fact they can afford more money on the case than you - other side may have more money and be able to afford a better legal time and witnesses - can be expensive

Answer 47

It is possible to take out insurance which covers legal fees. However, any insurance policy will contain small print that should be read and understood as this may limit or exclude cover available for legal fees. There are two types of insurance policies which are before the event insurance policy and after the event insurance policy. Before the event insurance policy refers to when the client buys a policy before suffering an accident. the policy contains a clause agreeing to pay legal costs if an accident takes place later. After the event insurance policy refers to when the client buys an insurance policy after suffering an accident. The policy contains a clause agreeing to pay the legal costs if a claim is made.

Answer 48

ADVANTAGES: - covers the costs of going to court and legal advice - can make the court process much more cheaper e.g costs of £30 per month rather than pay thousands for going to court DISADVANTAGES: - insurer may not help you pursue or defend a claim unless there is a 'reasonable chance of success' - some insurance policies may not cover the costs of legal action - you may not choose your own lawyer as insurers usually work with a panel of lawyers and appoint one to your case

Answer 49

A conditional fee arrangement (CFA) is also known as a 'no win no fee' agreement refers to when the lawyer and client split the financial risk of a legal case. The agreement is that part or sometimes all of the solicitors fee will be payable by the client but only if the client wins their case. If the case is lost, the client will pay a reduced fee or no solicitors fee. However, this does not include expenses only fees. The losing party will also have the pay the winners costs. The risks and costs involved have the effect that it encourages settlement rather litigation.

Answer 50

A lawyer may be willing to offer a CFA for a client if: - the lawyer may carry out initial work to assess the chances of the case succeeding. - the client will sign an agreement with the lawyer - the lawyer may require the client to take out an insurance policy to cover the costs if the case is unsuccessful - the lawyer will need to be satisfied that the case has a good chance of success - better than 75% - if the lawyer accepts the case they will bear the costs of the case and not charge the client unless the case is won and compensation is obtained - the lawyer will fight the case and attempt to win compensation for the client - if the case is won, the lawyer will be able to claim their costs from the loser in addition to any compensation - if the case is lost the lawyer will not charge the client and will have to bear the costs of the case themselves or claim them from the insurance company

Answer 51

ADVANTAGES: - no cost to the government - provide access to justice to all - discourages weak cases, as a solicitor will not take a case if they are not likely to win and thus be paid - if the case is won, the lawyer will be able to claim their costs from the loser in addition to any compensation - in the event, the client loses their case, they will not have to pay their lawyers conditional fee. However, depending on the agreement there may be other fees such as court fees that still must be payed DISADVANTAGES: - under-recovery costs - lawyers will only offer a conditional fee arrangements if agreed fee rate, together with the estimate chances of success makes taking up to case worthwhile. - barristers are instructed directly and do not normally do CFAS - CFA may lead to conflict - solicitors will take only cases that they are likely to win and this can discourage some 'test cases' which are new or novel - insurance premiums, to cover costs in a loss, are high - there may be conflict of interest between the solicitor and client as the solicitor may want an early win to get paid rather than keep fighting for more money for their client - the fees are confusing and not at all straightforward

Answer 52

State funding of legal cases is available through legal aid. However, due to the high cost to the government of legal aid, there are strict criteria as to who is eligible to receive it. It can be entirely free but sometimes a client has to make a contribution. Legal aid services can be provide only by organisations that have a contract with the legal aid agency. Those with contracts include solicitors, law centres and some citizen advice offices and if legal aid is available, the logo is usually displayed at the establishment providing it. Civil legal aid helps to pay for legal services and when no financial support is available, clients may make a conditional fee arrangement

Answer 53

different types of legal aid include: - legal help and family help - advice on rights and help to negotiate and draw up agreements - help at court - where someone speaks on the clients behalf at court - family mediation - to resolve a family dispute after a relationship has broken down (without going to court). It can help to resolve problems involving children, money and the family home.

Answer 54

ADVANTAGES: - if you do qualify, legal aid can protect you from paying the other side costs if you lose the case - you do not have to pay upfront DISADVANTAGES: - to qualify, a client must meet certain financial conditions or make a contribution - legal aid services can only be provided by organisations that have a contract with a legal aid agency - availability of legal aid for people has reduced since 1949 and few people qualify under the strict guidelines

Answer 55

Trade unions often provide legal services for their members in industry-related cases such as employment issues or industrial accident claims. Trade unions provide these services to members for free and will meet the some legal costs. if you are involved in a civil dispute, and you are a member of a trade union, you may receive help and advice as a benefit of being union member. Trade unions can offer a variety of legal help from union officials offering initial advice to members or union officials contacting and negotiating with an employer on behalf of a members. For more complicated issues, the issue will be referred to unions legal department for advice and assistance and an union official or lawyer can represent the member before a tribunal or court. If claim is successful, member will receive full compensation without deduction.

Answer 56

ADVANTAGES: - can cover the legal expenses of the court/legal advice - a representative is given to you on your behalf - can help on a variety of services DISADVANTAGES: - you must pay for trade union membership but in a long term perspective, trade union membership is more advantageous compared to paying thousands on your case

Answer 57

The citizens advice service provides advice on many issues but also legal matters. Most queries are dealt with face to face by telephone but an increasing number by email or webchat. All services are free but you will have to pay standard rate for any phone calls you make to them. Solicitors and barristers often support citizens advice by doing pro bono work

Answer 58

ADVANTAGES: - free - covers a range of areas of laws and considers local issues - access 24/7 DISADVANTAGES: - does not always cover all areas of law - does not cover all your legal expenses as they in reality can only provide advice but some solicitors and barristers may provide their services pro bono but that is not a guarantee

Answer 59

In legal funding, pro bono refers to solicitors and barristers doing legal work free of charge. Typically, it involves lawyers and law students working on a voluntary basis for people who need legal assistance but who are not in a financial position to get proper support

Answer 60

ADVANTAGES: - free legal advice - services are free DISADVANTAGES: - the legal experience of lawyers and law students who are offering pro bono can vary and they may not be experienced or knowledgeable enough to deal with the case - does not cover legal expenses / legal advice

Answer 61

1 - court fees in order to an issue a case in court, an initial fee has to be paid to the court and this fee amount can depend on the type of case, the court it is issued and the amount of the claim. if the claim can be issued online, the court fee may be cheaper and more fees may be payable for further court hearings, 2 - legal representation if a lawyer is needed to present or defend a court action, fees will be payable based on time involved and the complexity of the case. A solicitor will be paid an hourly fee multipled by time spent on the case whereas with a barrister, it is possible to negotiate a fixed fee if the barrister is required for advice or court presentation 3 - awarding at costs winners costs are paid by the loser, plus any compensation. The loser has to pay for their own costs too - except in a small claims court. This can act as a deterrent to taking court action as it can put people off going to court. 4 - compensation the loser of the a court action may be required to pay compensation to the winner. This may have to be paid immediately or in instalments 5- hidden costs - the ability of the loser to pay compensation and costs can only be investigated following judgement as they may not be able to pay - further costs may be incurred in forcing the loser to pay compensation and costs - as individuals or businesses reputation may be damages by the publicity of taking or defending court action - pursuing court action can be very time-consuming and stressful

Answer 62

Civil trials take place in either in county court or high court depending on the amount being claimed. These are the only trials that hear an initial trial so they are known as the courts of first instance. Whether a case begins in the county court or the high court depends on the complexity of the case and the amount being claimed. The claim will set out the grounds and amount of the claim. A defence may be filed by the defendant who is being sued. The case will be heard and decided by a judge and there is normally no jury.

Answer 63

civil court tracking system lowest to highest (bottom to up) Civil courts operate on a tracking system to allocate cases to the correct track to ensure they are dealt with efficiently and within specific time limits. Judges can manage the way the case should be dealt with. HIGH COURT (QUEEN'S BENCH DIVISION) - claims above £100,000 or personal injuries above £50,000 COUNTY COURT MULTI-TRACK - any claim not in fast track or small claims track COUNTY COURT FAST-TRACK - claims up £25,000 and personal injuries up to £50,000 COUNTY COURT SMALL CLAIMS TRACK - claims up to £10,000 or personal injuries up to £1,000

Answer 64

The parties can represent themselves or use barristers or solicitors to act on their behalf. - most evidence will be filed before the hearing and some oral evidence can be given - the judge will decide who wins the case on a balance of probabilities and any damages and costs to be paid.

Answer 65

district judges - a full time judges who deals with the majority of cases in the county courts circuit judges - a more senior judge to a district judge recorders - a judge who may sit in both crown court and county courts but must start by sitting in the crown court. The appointment is part-time, perhaps 20-30 days per year and is the first step on the ladder of judicial appointment

Answer 66

county court

Answer 67

the high court is based in london but has judges sitting at 26 towns and cities throughout england and wales. Cases in the high court are heard by high court judges. It has the power to hear any civil case and has three divisions. This is for administrative purposes and to enable high court judges to become specialists in a particular area of law.

Answer 68

high court divisions - queens bench division - chancery division - family division

Answer 69

appellate courts are courts that hear appeals from first- instance decisions

Answer 70

the main advantages of using the courts to resolve a dispute are: - the process is fair as everyone is treated alike and the judge is impartial - the trial is conducted by a legal expert/judge who is an experienced lawyer - enforcement of the court's decision is easier as any decision made by a court can be legally enforced - there is an appeal process with set appeal routes which allows the claimant if not happy with the decision to appeal against it. - it may be possible to get legal aid

Answer 71

DISADVANGTAGES OF GOING COURT: - expensive as the costs of taking a case to court are often more than the amount claimed. Cases in the high court can be in £100,000s and for smaller claims, the costs are often more than the amount claimed. - slow as there are many preliminary stages to go through before the case is given a date for the hearing and after being given the date it can be a long wait such as months or even a year for larger claims. This means that some cases may not be settled for years whereas for small claims are dealt with more quickly with fewer formalities to be completed before the case can set a hearing date. The wait for a hearing is on average 30 weeks. - complicated as there are many compulsory steps and pre-action protocols to be taken before the case is started in court. Also, the court process may be complicated for an ordinary person who is not legally knowledgeable with the legal terms in courts. - uncertain

Answer 72

Alternative dispute resolutions otherwise known as ADR refers to ways of resolving legal disputes that do not involve going to court. ADR has been encouraged by the government for many years as it is cheaper, simpler and more easily accessed by the public.

Answer 73

- arbitration - mediation - conciliation - negotiation - ombudsman

Answer 74

Arbitration is where a dispute is referred to an independent third party (an arbitrator) to resolve, with a binding decision which is enforceable at the courts. The arbitrator will usually have expertise in the disputed area and there are laws governing how arbitration is conducted. Parties may be represented and will present their case, which may involves witnesses to the arbitrator. This is widely used in business matters, with some commercial contracts even setting out how matters will be arbitrated if there is a disagreement within their duration.

Answer 75

ADVANTAGES: - arbitrators can bring much expertise - private - decisions are enforceable at the courts - informal - can be faster than court - can be arranged to suit the parties themselves e.g timing, location - can be cheaper than court - frees up the courts DISADVANTAGES: - there can be inconsistencies in decisions - professional arbitrators can be expensive - there are limited grounds of appeal - arbitration is not widely used

Answer 76

Conciliation refers to when an independent third party helps and works with the parties in a dispute to try and a find a solution to their dispute upon which they all agree. Parties may have their own legal advisors but the conciliator may also put forward suggestions to try resolve the dispute. If an agreement is reached, then this can be made legally enforceable; however, if no agreement is reached, the matter will have to be referred to the courts.

Answer 77

ADVANTAGES: - conciliators bring expertise and offer neutral advice to all parties - private - cheap - can be quicker than court - informal - can be arranged at a time and location convenient to the parties DISADVANTAGES: - imbalance of power, as one party may be legally represented and the other not, or one party may be better at putting their case across than the other - may ultimately end up in court if no agreement is reached

Answer 78

Mediation is where an independent third party acts as a go-between the parties to try to help in resolving the problem. The parties do not have to meet face to face, a neutral mediator will pass on all communications, including any offers to find a resolution, The parties can have a legal advisor if they wish. The mediator does not act as an adviser to parties but rather focus on empowering the parties to find their own solution as the main aim of the mediator to find a workable situation in which both parties can remain on good terms in the future. (used for family disputes)

Answer 79

ADVANTAGES: - fast - cheap - mediators can be trained specialists in the area and bring a lot of expertise to the negotiations - private - can be arranged to suit the parties themselves e.g timing, location - informal - empowers the parties to make their own decisions, meaning good relations cna be fostered for the future which can be applicable in certain situations DISADVANTAGES: - imbalance of power as one party may be legally represented and the other not, or one party may be better at putting their case across than the other - unenforceable - may ultimately end up in court if no agreement is reached

Answer 80

Negotiation is the most informal form of ADR in which the parties discuss the problem themselves, either with or without legal representation in an attempt to find a resolution to their situation. There is no fixed procedure for this with the parties setting the agenda and leading the negotiations themselves.

Answer 81

ADVANTAGES: - fast - cheap - informal - private - can be arranged to suit the parties themselves e.g timing and location - empowers the parties to make their own decisions, meaning good relations can be fostered for the future which may be applicable in certain instances DISADVANTAGES: - imbalance of power, as one party may be legally represented and the other not, or one party may be better at putting their case across more than the other - unenforceable - may ultimately end up in court is no agreement is reached

Answer 82

there can be problems with using the civil courts method such as: - cost - lawyers fees', loser pays winners legal costs, as well as their own - result - there must be a winner and a loser in every case with little room for compromise - delay - lengthy court cases and hearings plus possibility of more than one hearing - adversarial - court hearings do not always consider all the evidence; lawyers may rely on strength of argument and persuasion to win their case - complexity of the rules of procedure and language - failure to follow correct procedure may mean loss of the case - precedent - judges must follow strict rules of precedent to decide result

Answer 83

ADVANTAGES OF ADR: - quicker and cheaper - fixed dates can usually be arranged; there is no need for lawyers to be involved - procedures - there are few strict rules of procedure; meetings and any hearings are informal - expertise - those carrying out ADR are likely to be experts in their field of dispute resolution and the subject of the dispute - solutions - ADR aims to provide a resolution or settlement that is acceptable to both parties

Answer 84

DISADVANTAGES OF ADR: - predictability - it may be difficult to predict the result of the dispute as each case is settled on its own facts and there is no precedent to follow - legal expertise - as lawyers are not used there may be a dispute interpreting the wording of clauses or contracts - enforcement - any settlement reached may have to be applied or enforced, which may involved delay or difficulty - solutions - if settlement is not reached or not possible, the case may still have to go to court.

Answer 85

arbitation refers to when a dispute is referred to a third party concilliation is where a dispute is referred to a third party who works with the disputing parties to try to find a solution mediation is where a dispute is referred to a third party who acts a go-between the disputing parties to try to find a solution that is acceptable to them negotiation is where the parties themselves work to try to resolve their dispute ombudsman refers to an official body which investigates complaints

Answer 86

All employers are legally bound to ensure that their employees are not exposed to unreasonable harm at work, both physical and psychological. This covers all employee tasks and responsibilities, including health and safety regulations and protection from bullying, harassment and stress This means making sure that workers and others are protected from any risks arising from work activities.

Answer 87

The Health & Safety at Work etc. Act 1974 documents all necessary employer provisions as part of their duty of care, and has been in place for some time.

Answer 88

An employer has a duty of care for their employees that covers both physical and psychological wellbeing. As well as being a moral and legal obligation, duty of care is conducive to a positive working environment and long term productivity. Breaching this duty of care may result in serious repercussions for the business, such as a claim for constructive dismissal if the employee feels they have no option to resign.

Answer 89

Baron Alderson defined the concept of negligence as 'failing to do something that the reasonable person would do or doing something which the reasonable person would not do'

Answer 90

bourhill v young established the legal principle that there must be a connection in time and space for someone who suffers injury as a result of an accident as no duty of care is owed by the defendant to the claimant if there is no sufficient proximity between the claimant and the defendant when the incident occurred.

Answer 91

The defendants were liable as harm was reasonably foreseeable, the test does not require that the precise sequence of events needs to be foreseen. Although the accident was a variant of the foreseeable, an accident was foreseeable nonetheless. According to the principles of remoteness of damage, the test does not require that the precise sequence of events needs to be foreseen, although the accident may be a variant of the foreseeable, foreseeability will be satisfied nonetheless

Answer 92

employer, had a duty of care to ensure a safe system of work and this duty could not be fully delegated to another employee. Thus, the defendants always remain responsible for a safe workplace for their employees and are vicariously liable for any negligence of another. This duty includes three aspects; providing proper materials, employing competent workers and providing valuable supervision. The defendants were liable for damages.

Answer 93

Robinson v chief constanble west yorkshire establishes that the caparo test only needs applying in new and novel cases and that the courts should generally establish a duty by looking at existing duty situations and ones with clear analogy

Answer 94

Breach of duty refer to similar cases and move on to objective reasonable person test outlines in Blyth v Birmingham waterworks

Answer 95

Conclusion - has defendant breached their duty of care by failing to perform the standard of care of the reasonable person? refer to how pre-release case walker v northumberland case was decided. WALKER V NORTHUMBERLAND COUNTY COUNCIL: ' the council was held to have breached its duty to protect mr walkers psychiatric wellbeing. After the first breadkwon had happened, it was foreseeable that a continuation of the stress he was under would damage his mental health and the council was negligent in failing to take reasonable steps to prevent that. It was also held that the council was negligent in failing to take reasonable steps to prevent that. it was also held that the employer's duty of care to employees can include a duty to not cause psychiatric injury'

Answer 96

‘given the amount of money involved in the clients case and the complexity / simplicity of calculating damages, the case will almost detaining be heard on ____ track in the ___ court. the court process is controlled by judges throughout. However, judges will try to encourage an out of court settlement and if not possible the trial will be likely to take six months or more to come to court ‘

Answer 97

defendant has fallen below the standard of the 'reasonable person' or 'employer'

Answer 98

claimant is likely to be owed a duty of care by defendant: where the case has a similarity to an existing precedent, it should under the rule in robinson be applied through an incremental approach. The most likely authority is the similar case provided in part a - walker v northumberland county council. the legal principle in the source case (insert legal principle) but there are many references in the case to a duty of care being held in similar cases and if a duty were held in Walker then a duty would be held in similar circumstances under the rules of the precedent where the case fits an established/existing duty situation - insert any cases relating to duty of care if applicable - if not move on to breach. The health and safety at work act 1974 would be likely to create a duty of care for employers to their employees to not cause psychiatric or physical injury and ensure a safe environment etc

Answer 99

defendant has caused personal injury to claimant (insert injury) which, 'but for' their omission (their inaction etc), claimant would have not sustained. Therefore, defendant is the factual cause of claimants injuries. claimant's additional injuries are not too remote from defendants breach as a result of the application of the thin skull rule as if damage done to your victim is greater than could be foreseen, due to some vulnerability or special circumstance of the victim then you remain responsible for the full extent of the harm done. In this instance, claimants vulnerability has to be brought within the thin skull rule. - think about any defences of the defendant if none move on

Answer 100

negligence can be difficult to establish as it is a fault based liability and proving the fault can involve problems of cost, delay and access to lawyers. breach cases involve a subjective assessment by the judge of an objective standard

EXAM - unit 1 Flashcards

(124 cards)