Law For Business Flashcards

Question

what is the impact of verbal communciation

Answer 1

Acceptance is only valid when the offeror knows of the acceptance. This is straightforward when parties are face to face but more problematic when they are not. Acceptance by telephone is held to be effective only on being heard by the offeror i.e., only effective when received. Problems may arise if an oral contract is being made over the telephone when there could be interference on the line, and the offeree is unaware that the offeror has not heard his acceptance.

Answer 2

Postal Rule: Acceptance of an offer is valid when it is posted. Adams v Lindsell (1818): postal rule - sale of wool and delay in communication did not prevent contract being in place.

Answer 3

Yes Parties can avoid the postal rule by insisting on a different means of communication or stating that letters are effective on receipt (not posting). The courts can also imply such an intention.

Answer 4

Offeror cannot waive the communication rule Felthouse v Bindley (1862): – Felthouse v Bindley – withdrawal of horse from an auction never communicated failed; the horse still belonged to the seller as there was no communicated acceptance.

Answer 5

Unilateral Contracts: In a unilateral contract, the offeror implies that notification of acceptance is not required.

Answer 6

- consideration in a contract is the promise of performance, rather than performance itself. This means that a contract has legal effect from the moment it is agreed, and that it can be enforced even if that party is not yet due to pay or perform. Imagine you have two parties – A + B. They enter a contract for A to sell goods to B. A’s consideration will be the goods or the promise of the goods B’s consideration will be the money or the promise of money

Answer 7

In Currie v Misa (1875) it was held that a valuable consideration, may consists in some benefit to one party,and responsibility given, by the other. In Dunlop v Selfridge, consideration was defined in terms of the price by which one party bought the other party’s act or promise.

Answer 8

a promise made in return for a promise – where both promises are still to be performed John promises to deliver a car to Bert. Bert promises to pay £10,000 on car delivery. Breach of Contract: If John fails to deliver the car, it's a breach of contract.

Answer 9

Consideration is classified as one of two types: executory: when the promise has not been performed executed: when the promise has been performed within the meaning of the contract

Answer 10

where the promisor asks for something in exchange for his promise and the promisee provides consideration by giving the promisor what he has requested. Example: Offer for a reward for return of a dog.Whoever finds and returns the dog executes their consideration.

Answer 11

1) Consideration must not be past 2) It must have value 3) It must be negotiated and agreed upon by both parties; 3) It must be something that the law regards as having value;

Answer 12

Timing of Promise and Act: If a promise follows an already completed act, it's considered past consideration and usually not enforceable. Enforceability Condition: To be enforceable, the promise to pay must precede the act, establishing a clear agreement before the action is taken.

Answer 13

Balfour v Balfour (1919): An agreement between family members during an ongoing relationship is typically not legally binding. Daughter-in-law made improvements following which all children signed an agreement to reimburse her upon Mrs. Balfour's death. On Mrs. Balfour's death, children refused reimbursement. Court held the agreement unenforceable as the improvements were completed before the reimbursement agreement, making it past consideration. If the work had been done in response to a promise of reimbursement, it would have been legally enforceable.

Answer 14

- If an act is completed in response to a specific request, it may be enforceable. - Payment Normally Expected it strengthens enforceability. Stewart v Casey Employer asked an employee to work on an invention. After completion, the employee was promised a share of profits. Court held the employee entitled to a share due to the specific request and the employer/employee relationship implying payment. The promise to pay £5,000, however, was not enforceable as it came after the completion of the action.

Answer 15

Only those who have contributed consideration can sue on the contract. A party that is not part of the contract cannot enforce any rights as they have not provided any consideration. E.g. If Andrew promises Ben £1,000 if Ben gives his car to Chris, then Chris cannot usually enforce Ben’s promise because Chris is not a party to the contract. Here, the parties to the contract are Andrew and Ben.

Answer 16

This means that any consideration must be of material value, but it does not have to be the value of any product or service. other words, provided that the consideration has some value in the eyes of the law, however small that value might be, it can constitute consideration. A contract to sell an iPhone for £1 would be valid in respect of adequacy of consideration even though the value of an iPhone is much greater than £1. i.e., it is important that the consideration is of material value, but it does not have to be the value of the product.

Answer 17

Thomas v Thomas (1842): Owner promised the widow of the previous owner the right to occupy the house for life in exchange for £1 per year.Later, the owner tried to reclaim the house from the widow. The promise to pay £1 per year and maintain the house constituted sufficient consideration. Hartley v Ponsonby (1857): The crew was significantly reduced, forcing the remaining members to take on additional duties beyond their contractual obligations. In this case, the extra work was deemed good consideration, leading to a different outcome Contrast with Stilk v Myrick:

Answer 18

Rule in Pinnel's Case (1602): A promise by a creditor to accept less than the full sum owed on the due date does not discharge the debtor from the legal obligation to pay the balance. Example: Lucy owes Tilly £50. On payment day, Lucy offers £25, and Tilly agrees. Part payment alone is not good consideration; Lucy still owes £25 as she gained a benefit without giving anything in return.

Answer 19

Express terms are those that are explicitly agreed upon and communicated between the parties, either verbally or in writing.

Answer 20

Implied terms ( statute, custom , the courts ) (i.e., the common law). - They are not expressly agreed on by the parties. - these included by contracts Courts imply terms into contracts to help protect parties from exploitation. E.g. terms are implied into employment contracts to protect employees from unsafe working environments, discrimination

Answer 21

Terms may be implied into certain types of contract. An example can be found in the Consumer Rights Act 2015 which protects consumers against faulty goods.

Answer 22

Courts imply terms into contracts to help protect parties from exploitation. E.g., terms are implied into employment contracts

Answer 23

In a contract, some terms matter more. If there's a breach the solution depends on how important the term is. Terms can be: Warranty: It's in the contract from the start. Implied: It's not written but understood by both parties. Innominate: It's in between and its importance decides the remedy

Answer 24

Hutton v Warren (1836) A landlord gave his tenant farmer notice to quit his tenancy. The landlord insisted the farmer continued to farm during the period of notice. As the tenant would leave before harvest, he requested an allowance for seed and labour. There was no mention of an allowance in the tenancy contract. The court implied into the tenancy contract the trade custom relating to seed and labour. This stated that, when a tenant is given notice to quit, he is bound to work the land during his notice period, but trade custom permits him to claim a fair allowance for this work.

Answer 25

-Fundamental terms are crucial for the contract's existence and meaning. -Parties can emphasize the importance of specific terms before contract conclusion. Breach of Condition: Breaching a condition releases the other party from performance.

Answer 26

Warranties in a contract are like secondary promises, not as important as the main terms. If a warranty is broken (breached), the consequence is only damages. For example, if a hotel promised tea and coffee facilities but didn't provide them (a warranty breach), it won't end the contract but might lead to compensation, like a lower bill. In simple terms, warranties are important but breaking them doesn't cancel the contract. Instead, it means you can get compensation for any problems or letdowns.

Answer 27

- Terms that are not readily identifiable as conditions or warranties are labelled as innominate terms. - If the consequences of the breach are serious and the contract ends it will be a condition. happens when injured party has been deprived of the benefit of the contract. If the consequences of the breach are minor it will be classified as a warranty.

Answer 28

An exclusion and limitation clause is a part of a contract that aims to restrict or exempt liability in case of contractual issues. For it to be effective, it must be clearly written, incorporated into the contract, and fair to both parties. Courts and laws scrutinize these clauses to prevent misuse and ensure fairness.

Answer 29

the clause must be incorporated into the contract For a clause to become part of the contract the party who will be subject to the clause must have reasonable notice of its inclusion. We are asking if the exclusion or limitation clause has been incorporated into the contract i.e., is it a term of the contract? There are two factors to consider. - Timing - Sufficiency of notice

Answer 30

Must have notice either before or at the time they enter into the contract. Ineffective notice can be seen in the case of Olley v Marlborough Court Hotel (1949) A notice on the back of stated the hotel would not be liable for theft of property from guests. Mrs Olley suffered when her clothes and jewellery were stolen from her room. It was held the clause excluding liability was ineffective as Mrs Olley only had notice of the clause after the contract had been made – which was at the reception desk. Had she seen the clause before she entered into the contract, e.g., if it was on a notice on the reception desk, it would have been incorporated.

Answer 31

In Thornton v Shoe Lane Parking (1971), a car park notice disclaimed liability for customer injuries, but the court ruled the clause wasn't part of the contract. The contract was formed at the ticket machine, and the clause wasn't visible at that time. In Chapelton v Barry UDC (1940), a notice instructed payment to the attendant for a deckchair, and the ticket received had an exclusion clause. The court deemed the ticket a receipt, not a contractual document, as the offer was the notice and acceptance was taking the deckchair. The exclusion clause wasn't incorporated since the ticket was received after the contract was made. Incorporation criteria require clauses to be visible before or at the contract's formation, either in a written sign at the business place or in a contractual document.

Answer 32

A clause is generally not binding unless the offeror takes reasonable steps to bring it to the customer’s attention. Reasonable steps are required for any clause to be effective. Interfoto Picture Library v Stiletto Productions (1988): Contract for photographic transparencies included a penalty clause for late return. Claimants were 14 days late returning 47 transparencies. Court held that reasonable steps were not taken /Consequently, the term was not part of the contract.

Answer 33

A party is deemed to have notice of any terms in that contract, regardless of whether they have read the contract or not. It is up to the party signing the contract to read it. L’Estrange v Graucob (1934) The claimant signed an agreement for a cigarette machine for her café. She did not read the terms but was nonetheless bound by an exemption clause in the contract.

Answer 34

if a contract is unclear, the interpretation that is less favorable to the party who created the document will be favored. This rule helps ensure that those who create contracts are responsible for making their intentions and terms clear and unambiguous. Contra = against Proferentem = the party who offered it

Answer 35

For an exemption clause to be valid, whether in a signed document or not, it must be written in a clear and unambiguous manner. If there is any doubt about the meaning or extent of the clause, the court will construe it against the party seeking to rely on it.

Answer 36

This presumption assumes that family members and friends do not generally intend to create legally enforceable agreements. They assume that these agreements are social and legal consequences are not anticipated in the event of a breach. E.g. if you agree to meet your friends to go to the cinema at 7pm and they do not turn up, it is unlikely you will sue them for breach.

Answer 37

Definition: Parties must intend to be legally obligated. Challenges: Intent may not be explicitly stated, leading to disagreements. Dispute Resolution: Courts decide if parties intended legal relations. Assessment by Courts: Consider the commercial or social context. Presumptions: Domestic/Social Agreement: Presumed no legal intent. Business Agreement: Presumed legal intent. Rebuttal: Presumptions can be rebutted based on specific circumstances. Courts consider actions, conduct, and context to determine true intentions.

Answer 38

Wilson and Another v Burnett (2007): Agreement to share bingo winnings held not legally enforceable. Although an agreement was made to share prizes over £10, it was considered a mere discussion or chat. Lack of clear agreement and no intention to create legal relations. Balfour v Balfour (1919): Husband promised to pay wife money while working abroad. Held to be an informal arrangement, not legally enforceable. The presumption was that domestic agreements lack legal intent. Merritt v Merritt (1970): Money payment agreement between separated couple held enforceable. Despite being married, the couple intended the agreement to have legal consequences. Simpkins v Pays (1955): Arrangement between friends to enter a competition held legally binding. Each party contributed financially, indicating a joint enterprise. The agreement was considered legally enforceable. Presumption and Rebuttal: The cases demonstrate the importance of circumstances in determining legal intent. While there's a presumption based on the setting (domestic or business), it can be rebutted by specific circumstances indicating the parties' true intentions.

Answer 39

A presumption exists that parties intend to form a legal agreement, requiring them to prove a lack of intention. Rose & Frank Co v Crompton & Bros (1925): Defendant appointed claimant as sole distributor of paper tissues. Agreement stated it was not legally binding and not subject to legal jurisdiction in courts. Defendant ended the agreement without notice and refused orders. Court held no legally enforceable contract between the parties.

Answer 40

Not everyone has the capacity to enter into a contract. Parties that lack contractual capacity include those who are: minors, intoxicated mental incapacity corporations.

Answer 41

A minor is a person under 18. The law prevents minors entering into contracts for their own protection, i.e., it prevents them entering into unfavourable contracts which are not for their benefit. There are two exceptions - Necessaries -Education

Answer 42

Necessities: Contracts for necessities are binding on a minor, provided they do not contain detrimental terms.Detrimental terms could render the contract non-binding. Nash v Inman (1908): Minor Cambridge student supplied with clothes, including 11 fancy waistcoats. Court held the clothes were suitable but not actually needed; contract not binding. Education: Contracts for education are generally binding if overall beneficial for the minor. Doyle v White City Stadium (1935): Agreement between a minor professional boxer and British Boxing Board of Control. Clause stated the minor would lose payment if disqualified. Court held the agreement binding as it encouraged clean fighting and protected inexperienced boxers.

Answer 43

Anyone who make a contract whilst under the influence of alcohol or drugs are presumed to know what they are doing and are bound by it However, if at the time of making a contract, a person is so intoxicated he does not know the nature of the transaction he is entering into, and the other party realises this, then the contract will be unenforceable, unless the contract is for necessary goods that have been sold and delivered.

Answer 44

affairs of a person lacking mental capacity may be under the control of the court under the Mental Capacity Act 2005. In these cases, the court takes control of a person’s power to make contracts and any contracts purported to be made with the person personally are not valid. A contract made with a person who is not under the control of the court but has some form of mental incapacity is valid, unless it can be shown that, at the time of making the contract, the mentally disordered person did not know the nature of the transaction and the other party knew or should have known of the mental incapacity.

Answer 45

A corporation is a legal entity with its own legal personality. Companies have constitutions, and capacity to act may be restricted by their constitution. ultra vires- company or other body acting outside its powers is said to be acting ‘ultra vires’ (beyond the powers). If a body acts ultra vires, then its actions may be invalid.

Answer 46

Privity of contract is the common law principle that states only parties to a contract can sue on that contract. i.e., only those who have provided consideration (the offeree and offeror) may sue in the event of a dispute (i.e. something goes wrong, e.g., goods were promised and not delivered).

Answer 47

William Tweddle and Miss Guy were engaged. Both fathers agreed to give the couple a sum of money when the marriage took place, but Mr Guy died before making his payment. It was held that William was not entitled to the money. He was a beneficiary of a promise, but he had not provided any consideration. There was no contract between William and Mr Guy and therefore no privity of contract.

Answer 48

-agency - third party insurance -trusts - benefit of group

Answer 49

Agency: Where an agent acts on behalf of their Principal, the Principal is treated as though they had made the contract themselves. E.g. A creates a contract on behalf of B, then B is seen as a party to the contract.

Answer 50

Third-party insurance: If an insurance policy has been made for another’s benefit, they can claim even if they did not pay the premiums. For example, under the Road Traffic Act 1988 motorists are required to have insurance against damage and injury to other road users. In certain circumstances, an injured road user can claim compensation directly from the other party’s insurance company.

Answer 51

A trustee will hold, for example, property on behalf of another. A trust is where property is passed by one party to a second party (the trustee), stating that it is to be held by the trustee for the benefit of third parties (beneficiaries). If the trustee does not comply with conditions set out in the trust, then the beneficiary can apply to the court to enforce the terms of the trust.

Answer 52

Where a contract is made in one person’s name, but the contract benefits a group .only the person who made the contract is entitled to sue. However, that person will be able to sue for his own losses and those of the group. Jackson v Horizon Holidays (1975) Mr Jackson booked a holiday for his family. The holiday was poor he decided to sue. Mr Jackson could sue as the party to the contract, but damages were awarded to the whole family. i.e., only the person who made the contract is entitled to sue on it. However, that person will be able to sue for his own losses and those of the group.

Answer 53

the general rule is that complete performance is required. If a party fails to complete their side of the bargain, then they may be in breach of contract. In the event of a breach, the other party may be entitled to, for example, withhold payment. E.g., Fred agrees to sell his car to Bert in exchange for a cash price. When Fred has given the car to Bert and Bert has paid Fred, the contract is at an end as they have completed their obligations, in other words, they have performed the contract. Unfortunately, sometimes things go wrong, e.g., Fred could give the car to Bert and Bert may refuse to pay the cash.

Answer 54

Cutter v Powell (1795) Cutter was a crew member on a ship with wages due on completion of a voyage. He died 19 days before the journey ended and his widow was refused the unpaid wages as he had not fully performed the contract. Several exceptions have developed to help with the unfairness of the rule.

Answer 55

Our first exception - Divisible Contracts Our second exception - Prevention of Performance Our third exception - Acceptance of Part Performance Our fourth exception - Substantial Performance

Answer 56

Some contracts are divisible into parts, and payment becomes due at various stages of performance. Contracts of employment are an example of divisible contracts . Ritchie v Atkinson (1808) goods would be shipped at a cost of £5 per tonne. Only part of the agreed cargo was shipped, and the owners claimed that, as the contract had not been fully performed, they were released from payment. It was held that the contract was divisible. The contract could be divided into separate parts as the agreement was to pay per tonne. Therefore, payment was owed for each tonne of the cargo that had been carried.

Answer 57

A party will be in breach if they prevent the other party from fulfilling their contractual obligations. Planche v Colburn (1831) The claimant was asked to write a book with payment due on completion. The claimant wrote half the book when the defendan asked him to stop. The claimant was entitled to part payment for partly performing his contract.

Answer 58

In a non-divisible, entire contract, it may be possible to show that the other party voluntarily accepted partial performance. The party accepting part performance pays for the completed portion of the contract (proportional payment). Genuine Choice:The party accepting part performance must have a genuine choice over whether to accept or reject it. Case Example - Sumpter v Hedges (1898): Claimant contracted to build a barn for the defendant but abandoned the project Court held the defendant did not have to pay for part performance as there was no genuine choice. Defendant only had to pay for materials left behind and used to complete the building (as he had a choice in using the materials).

Answer 59

This occurs where someone substantially performs their contract, i.e., they have done the bulk of what they have agreed to do, but some minor part remains undone. In this case the injured party had to pay what is due under the contract with a minor discount to cover the incomplete performance. The court must decide if there has been substantial performance, and this will change with the facts of each case.

Answer 60

Bolton v Mahadeva (1972): Contract for the installation of heating system for £560. The central heating was defective and required substantial repair costing £174. Court held the cost to repair was too great a proportion of the original cost; contract not substantially performed. Claimant could not recover payment for the work done. Hoenig v Isaacs (1952): Contract to decorate and furnish a flat. Full performance lacked repairs to a bookcase and replacement of a wardrobe door. cost was £750. Court held the contract was substantially performed, but a reduction of £55 was made for the incomplete work. In Bolton v Mahadeva, the cost of repairs was deemed too significant, while in Hoenig v Isaacs, a deduction was made for the minor incomplete elements.

Answer 61

This occurs where parties agree not to perform the contract. This is a new legally binding agreement so will need all the elements of a valid contract. i.e., the agreement to end a contract before it is completed is a second contract between the parties, and this second contract is binding on the parties provided all the necessary elements of a contract are present.

Answer 62

A contract becomes frustrated when somewhere between agreement and performance something outside the control of the parties makes performance impossible In this case we would say that the contract has been discharged by frustration.In these cases, a party cannot perform their side of the bargain through no fault of their own. Who has the onus of proof? The onus in on the person claiming frustration to prove the event has prevented performance and frustrated the contract.

Answer 63

Frustrating events include: 1) Destruction or unavailability of the subject matter 2) Death or illness of one of the parties 3) Supervening illegality 4) Government intervention 5) The event to which the contract is based fails to occur Delay in performance.

Answer 64

Taylor v Caldwell (1863) rent a hall for a series of concertss from Taylor.but before the concerts had taken place, the music hall was destroyed by fire. It was held that performance of the contract was impossible; the contract was frustrated, and both parties were released from their obligations. Gamerco SA v ICM/Fair Warning (Agency) Ltd (1995) a contract was frustrated when a stadium hired for a rock concert became unsafe and it was not possible to find an alternative venue in time.

Answer 65

Condor v Barron Knights (1966) a drummer was advised by his doctor to limit any performances to four nights a week. The contract was frustrated as the ability to only work for four nights was incompatible with the nature of the work Atwal v Rochester (2010) Rochester, a builder, agreed to carry out building works for Atwal. Rochester was prevented from working due to surgery. . As Rochester could no longer carry out the work due to ill health the contract was frustrated.

Answer 66

A contract can be frustrated due to a change in the law. This occurs when a contract is legal when it is made, but since its formation changes in the law make performance of the contract illegal. Fibrosa Spolka v Fairbairn Lawson Combe Harbour (1943) a contract was formed between English firm and Polish firm for machinery which became frustrated due to war.

Answer 67

During national emergencies and times of war the government may, , requisition goods or property. If this happens then relevant contracts relating to the goods or property will be frustrated. Morgan v Manser (1947) where a comedian’s contract was frustrated due to being called up to fight in a war.

Answer 68

Frustration occurs when the purpose of the contract becomes impossible due to unforeseen circumstances. Krell v Henry (1903): Defendant hired a flat to watch King Edward VII's coronation, which was postponed.contract was frustrated as its purpose was specific to watching the coronation. Herne Bay Steam Boat v Hutton (1903): Defendant hired a steamship for two purposes: to view the Naval Review (part of the coronation) and for cruising. Naval Review was canceled due to the coronation postponement. Held the contract was not frustrated because it had two purposes, and only one could not be fulfilled. .

Answer 69

Davis Contractors v Fareham District Council (1956) Davis agreed to build 78 houses for Fareham Council. Due to bad weather and a shortage of labour the houses took much longer to build and cost more than at first thought. It was held the contract was not frustrated, it had only become more costly and difficult to perform.

Answer 70

1. a failure to perform at all 2. a party does perform the contract, but the performance is below that expected If the term is a warranty, the contract is not discharged.

Answer 71

1) Damages 2) Rescission (equitable remedy) 3) Specific Performance (equitable remedy) 4) Injunctions (equitable remedy) (Equitable remedies are awarded where damages may be an inadequate remedy)

Answer 72

The aim of damages is to place the innocent party in the position they would have been in if the contract had been performed. Limitation Act 1980: Six-year limitation period for initiating a claim for breach of contract. The period starts when the breach occurs, regardless of whether damage has been suffered or the innocent party was aware of the breach.

Answer 73

the court will assess the damage and decide if its too remote as it may be unfair to compensate a party for damages which fall too far from the breach. 1. Remoteness of damage 2. Quantum of damages

Answer 74

When a contract has been breached, the innocent party may not be able to claim for every loss that he has incurred because of the breach. The court will decide how far the liability of the defendant extends. Claims for damages are restricted to the recovery of losses that are not too remote.

Answer 75

Hadley v Baxendale (1854): The defendant contracted to carry the claimant’s mill shaft .Due to the fault of the defendant, there was a delay in returning the shaft. The claimant claimed damages for lost profits due to the mill being out of action. The defendant was not liable for the loss as it was too remote. The carriers were not liable because they were not aware of the importance of the delivery of the shaft. When a contract has been breached, the innocent party may not be able to claim for every loss that he has incurred because of the breach. The court will decide how far the liability of the defendant extends. Claims for damages are restricted to the recovery of losses that are not too remote.

Answer 76

The defendants agreed to sell boiler to the claimants, defendants knew the claimants wanted boiler immediate . defendants breached contract delivering the boiler 20 weeks late. The claimants claimed £16 a week, representing the increased profit they could made with boiler. claimed £262 a week, representing the value of an exceptionally lucrative contract to dye army uniforms.unavailability of boiler caused the claimants to lose contract It was held the loss of £16 per week was recoverable within the first rule in Hadley v Baxendale. The loss of £262 was neither within the first nor the second rule and was therefore not recoverable.

Answer 77

We will now turn to establishing the quantum of damages (i.e., the damages payable). Four criteria 1) the loss must be financially quantifiable; 2) agreed damages will not be altered, but penalty sums will not be enforced; 3) the injured party has a duty to mitigate any loss; 4) contributory negligence may reduce the amount of damages.

Answer 78

This means the loss must be capable of being assessed financially. This is straightforward in some cases, e.g., when goods are damaged as the damage is the cost of replacement goods

Answer 79

Ruxley Electronics & Construction Ltd v Forsyth (1995): Defendant contracted to build a swimming pool with a specified depth. Completed pool depth was less than specified.Court awarded damages of £2,500 for loss of amenity. . Jarvis v Swan Tours (1973): Claimant claimed for mental distress due to inferior holiday facilities. Court of Appeal allowed damages for loss of entertainment and enjoyment. Confirmed that damages for mental distress could be recovered in appropriate cases.

Answer 80

Agreed Damages: Pre-determined damages stated in the contract for breach. Will not be altered once agreed. Reflects a genuine attempt to estimate potential losses. Penalty Sums: Excessive damages intended to punish the breaching party.Not enforced; seen as punitive rather than compensatory.

Answer 81

Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Co (1915) The contract between Dunlop and New Garage. preventing New Garage from selling the tyres below list price. In the event of a breach a sum of £5 would be payable for each tyre sold below the list price. The defendants sold tyres below the list price and the claimant brought an action for damages. The defendant argued that the relevant clause was a penalty clause and thus unenforceable. It was held the clause was a liquidated damages clause, not a penalty clause. £5 was quite a lot of money in 1915 but it was taken as a genuine attempt to assess damages.

Answer 82

third criteria - the injured party has a duty to mitigate any loss Brace v Calder (1895) The claimant was an employee of a partnership on a fixed term contract. The partnership dissolved and the claimant lost his job. A new partnership was formed, and the claimant was offered his job back . The claimant refused and claimed the wages lost due to early termination of his fixed-term contract. it was held that a breach of contract had occurred, but the claimant should have mitigated his loss by accepting the offer of alternative employment. He was only entitled to nominal damages.

Answer 83

We can now turn to our fourth criteria - contributory negligence may reduce the amount of damages This occurs where damages are reduced due to the claimant’s own lack of care which has added to their losses. This concludes our work on damages, and we will consider the equitable remedies: (1) rescission, (2) specific performance and (3) injunctions.

Answer 84

This is where a court insists that a party performs their contractual obligations. It is never used in employment contracts. The remedy is rarely used as damages are seen as an adequate remedy.

Answer 85

An injunction is a court order requiring a person not to do a certain thing, or more unusually, to do something.It is not ordered where damages are an adequate remedy. It will not be used to force one party to employ or work for another as this would amount to forced employment.

Answer 86

Records Ltd v Britton (1968): The Troggs, a pop group, signed management whichProhibited the group from appointing another manager .The Troggs wished to replace their manager. The manager sought an injunction preventing the group from hiring another manager. Court refused to grant an injunction as it would essentially force continuous employment of the manager against the group's will. Warner Bros v Nelson (1936): Bette Davis, a film star, contracted exclusively with Warner Bros for one year. Davis breached the contract by signing with a UK company for a film.Warner Bros sought an injunction to prevent Davis from working for the UK company. Court did not force Davis to work for Warner Bros but granted an injunction against her working for a UK film company.

Answer 87

the court will set the contract aside and put the parties back in their pre-contractual positions.

Answer 88

judges used to be the main law makers before parliament took over

Answer 89

Judges make law when deciding both criminal and civil cases in two main ways: (a) Interpreting statutes (b) Developing the common law A judge’s role is to interpret the words of the statute and there are several aids that exist to help with this process. These are: 1. Intrinsic aids 2. External aids 3. Judicial principles of statutory interpretation 4. Judicial presumptions

Answer 90

Constitutional law covers the way in which the government is structured and run

Answer 91

Administrative and Revenue law covers how public services raise taxes and how that money is spent

Answer 92

Criminal law regulate peoples behaviour the state punishes the wrong doers needs to be proven 100% protect people covers matters relating to public order and national security

Answer 93

Civil law helps to protect and promote individual rights e.g. contract law or tort law Laws relating to the family, property, company or partnerships give legal validation to relationships or transactions.

Answer 94

Law can be classified as either public law (affecting everyone) or private law (between individual ) . It can also be classed by civil law or criminal law.

Answer 95

First Reading: Title announced in the House of Commons. MPs can obtain copies for review. Second Reading: Government minister explains bill's principles. Debate on bill's principles. Majority vote decides whether it proceeds . Committee Stage: Detailed examination by a Commons committee. Report Stage: Committee reports findings to the House. Debate and vote on proposed changes. Third Reading: Bill presented for final debate. Vote on whether to pass the bill. Transfer to House of Lords: Bill moves to the House of Lords. Similar procedure in the Lords. Amendments and Approval: If Lords make changes, bill returns to Commons. Iterative process until agreement on wording . Royal Assent: Monarch's consent needed for the bill to become law.

Answer 96

Intrinsic aids are like helpful clues found right in the law itself.

Answer 97

external aids serve as supplementary tools to understand the meaning of the law. Although not part of the law itself, they are valuable in deciphering legal provisions. Some common external aids include: Interpretation Act 1978: Provides general principles for interpreting statutes. Offers guidance on legal language and construction. Reports of the Law Commission or Government Inquiry: Recommendations and findings from legal experts. Insight into the legislative intent and purpose. Hansard: Records all discussions and statements in Parliament. Offers context and background to legislative debates. Dictionaries and Legal Textbooks: Oxford English Dictionary helps define terms. Relevant legal textbooks provide in-depth analysis. Explanatory Notes: Often accompany important acts. Written by the government department responsible. Clarify the purpose, context, and key provisions.

Answer 98

The literal rule means that words are understood exactly as they are written, without trying to guess at other meanings. With this rule, the court doesn’t dig into the law’s intentions; instead, it focuses only on what the law plainly says.

Answer 99

The golden rule is used when a strict interpretation of the law could lead to absurd outcomes. Instead, the court selects an interpretation that aligns with the law's purpose, avoiding unreasonable results. Example - Smith v Hughes: Applied to a prostitute in an upstairs window. Preventing disturbance, not limited to literal street presence. Highlights how the golden rule prioritizes common sense in interpretation.

Answer 100

The mischief rule is interpreting a law by examining the problem its aimed to prevent. Wolman v Islington: Motorcycle on a stand above the sidewalk. ITreated as on the sidewalk to address the law's intended purpose. Also known as Heydon’s Case rule, it aids judges in aligning solutions with the original purpose of the law.

Answer 101

The purposive approach is it allows the court to look beyond the words of the law and understand its main goal. in the Royal College of Nursing v DHSS case, the law said only doctors could perform abortions, but later, nurses did most of them. The Court of Appeal, using the literal approach, said it was illegal. However, the House of Lords used the purposive approach, which focused on the law’s purpose, and allowed nurses to be included under the law

Answer 102

The rule states that judges are required to follow decisions of previous cases. Two considerations: 1. Inferior courts are bound by the decisions of higher courts 2. Do the facts of the current case come within the scope of the principle of law in the previous decision?

Answer 103

Judicial presumptions (as they are presumptions they can be rebutted) a statute will not 1. impose strict liability (strict liability is a state that does not require intention). 2. operate retrospectively, i.e. all events that occur before an Act is passed will not be an offence under the Act 3. change the common law

Answer 104

three main types of delegated legislation: 1. Orders in Council During covid they made laws they are a body that can make laws outside of parliament 2. Statutory Instruments E.g. Food Safety and Hygiene (England) Regulations 2013 (SI 2013/2996). 3. Byelaws E.g. parking restrictions made by an airport authority. (Birmingham city council can make law)

Answer 105

public law is a law (affecting everyone )

Answer 106

is split into two sectors public law and private (civil) law or civil law and criminal law

Answer 107

* constitutional and administrative law * criminal law

Answer 108

* family * tort * probation * property * contract

Answer 109

Used in civil actions Claimant sues the Defendant

Answer 110

Used in criminal cases. The defence is the defendant or accused. Prosecution is sometimes called the Crown to reflect that criminal cases are brought by the State.

Answer 111

Used in both civil and criminal cases. Appellant is appealing against the decision.

Answer 112

Normally shortened for case law or judge-made law

Answer 113

The law of equity was created to correct wrongs in the law. The law of equity is designed to remedy any injustice that may be in the law. The law of equity protects the vulnerable

Answer 114

Acts of Parliament are also called statutes

Answer 115

1. Saves time. 2. Specialist knowledge. 3. Flexibility. 4. Parliament does not sit all year round. 5. Amendments and repeals.

Answer 116

1. Parliament is removed from the process. 2. Difficult to keep track. 3. Problems with highly specific, detailed or technical material. 4. Excessive legislation is passed.

Answer 117

Magistrates' Court: This is the lowest level of the court system./ Cases are usually heard by a single magistrate or a panel of magistrates. Crown Court: Deals with more serious criminal cases, such as indictable offenses. Trials are conducted by judges and juries. Also hears appeals from the Magistrates' Court. High Court: Divided into three divisions: the Queen's Bench Division, the Chancery Division, and the Family Division. Deals with civil cases of higher value and complexity. Has the power of judicial review and hears appeals from lower courts. Court of Appeal: Consists of the Civil Division and the Criminal Division. Hears appeals from the High Court and certain other tribunals. Generally, decisions made by the Court of Appeal are binding on lower courts.

Answer 118

Deals with summary offences (e.g., driving without insurance, careless driving, threatening language). Handles triable either way (hybrid) offences, such as mid-range offenses like theft and burglary. Case seriousness determines whether it stays in the Magistrates’ Court or goes to the Crown Court.

Answer 119

-appeals -indictible offences(serious offenses rape,bodily harm) -setencing cases from magistrates -legal aid and bails -serious triable either way

Answer 120

Civil Court -Civil cases are identified by the names of the parties Types of Cases: -Contract Disputes -Tort Cases (e.g., seeking compensation for injuries) -Recovery of Land -Debt Recovery (e.g., when someone owes a debt to a business) Jurisdiction: Cases that can be heard in the County Court can also be heard in the High Court, subject to certain limits. The High Court typically handles more complex, expensive, and specialized cases.

Answer 121

In civil cases the judge decides who the winner is. In both civil and criminal cases each side presents their case and evidence to the judge who supervises the proceedings.

Answer 122

Where courts use a trial procedure a judge plays a more active role , which may involve cross-examining the defendant and questioning witnesses himself. Here the judge is discovering the truth

Answer 123

* compensate individuals who have been caused loss or injury due to bad actions of others

Answer 124

-punish people who have made a criminal offence

Answer 125

* European law * parliment * the court

Answer 126

direct- House of Commons - house of lords- royal assent indirect- created by another legal body

Answer 127

* parliament * delegated legislation

Answer 128

criminal -court of appeal -crown court -magistrates court civil - court of appeal -high court -county court

Answer 129

divided into 3 divisions -kings bench division (cover disputes like personal injury,negkect,injury -chancery division(deals w matters like trust,morgages) -family division(covers international child abduction and forced marriage ) each 3 of these dividosons of thebhigh court where 2 judges sit to hear appeal cases they must follow the decisions of the Supreme Court and the court of appeal

Answer 130

this court has 2 divisions - civil division -criminal division usually 3 judges sit it can go up to 5 depending on importance (bound by decisions of the Supreme Court and its decisions bound all courts that are inferior )

Answer 131

The claimant must prove the following: 1. That the defendant owed the claimant a duty of care 2. That the defendant failed to perform that duty/breached that duty of care 3. That as a result the claimant suffered damage

Answer 132

Case Background: Mrs. Donoghue went to a cafe with a friend who bought her a bottle of ginger beer and an ice cream.She found a snail in the bottle of ginger beer, suffering personal injury. Notably, she did not have a contract with the retailer as she did not purchase the items. The case set the precedent for the neighbour principle, determining whether a duty of care is owed. one must take reasonable care to avoid acts or omissions that could reasonably be foreseen to injure one's neighbour. This principle has since

Answer 133

he ‘neighbour principle’ was established to determine whether a duty of care was owed for loss suffered due to negligence. This case established that you owe a duty of care to your neighbours.

Answer 134

a neighbour could be a pedestrian nearby it is called the neighbour principle/test because the case established that you owe a duty of care to your neighbours. A neighbour is someone that you can reasonably foresee would be injured by your acts or omissions.

Answer 135

to succeed in a claim for negligence, the claimant must establish that the defendant owed him a duty of care, but this is only the first stage. The claimant must also establish that the defendant broke that duty of care. He must prove that the defendant did something that a reasonable man in the circumstances would not have done, or that the defendant failed to do something that a reasonable man in the circumstances would have done. It is up to the injured party (the claimant) to prove the defendant failed to take reasonable care i.e., that they breached their duty of care.

Answer 136

In negligence law, behavior is measured objectively against the 'reasonable person' standard. Key considerations include: Criteria: A. Likelihood of Accident B. Extent of Potential Harm C. Practicability of Precautions D. Skilful Claimants E. Qualifications of Defendants F. Good Practice G. Unhappy Outcomes H. Burden of Proof and Res Ipsa Loquitur The 'reasonable person' standard ensures an objective evaluation, asking how a reasonable individual would act in a specific situation, considering various factors.

Answer 137

He said.. ‘You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

Answer 138

The more likely it is that an accident will occur, the more care a defendant needs to take, although some risk on the part of the defendant is reasonable. We consider 2 cases: Bolton v Stone (1952) – a batsman, playing in a cricket ground hit a cricket ball over a 17-foot-high fence. The claimant, was hit by the ball. A ball had been hit outside the fence six times in 30 years; therefore, the risk of it was small. It was held that the defendant club was not liable. They had taken reasonable precautions in maintaining a 17-foot fence. Miller v Jackson (1977) - the claimant’s house, which was close to a village cricket ground, was damaged by cricket balls. Balls were hit over the fence about eight or nine times a season, and the claimant’s property had been damaged more than once. It was held that the defendant cricket club was liable. The risk was sufficiently large to have expected more precautions from the club.

Answer 139

Principle of Risk and Potential Harm: Case Example Paris v Stepney Council (1951): the claimant, who was blind in one eye, worked under a vehicle in the defendant's garage. A piece of metal went into his good eye, causing blindness. Despite safety goggles not being standard practice at the time, the court held the defendant liable.

Answer 140

To strike a balance between protecting the claimant and not overburdening the defendant, the standard of care must consider the normalcy of some risk, without aiming for a risk-free environment. In Latimer v AEC (1953), a factory faced flooding, making the floor slippery. The defendant spread sawdust on main walkways, issued warnings, but a claimant was injured in an untreated area. The court deemed the precautions reasonable, rejecting the argument to shut down the entire factory due to the limited risk and likely injury.

Answer 141

If a claimant has a particular skill which means he should be aware of any danger, the defendant will not be expected to take steps to protect the claimant from that danger. Roles v Nathan (1963) – two chimney sweeps were overcome with fumes while attempting to seal a hole in a flue. The boiler was alight but should have been switched off when the work took place. It was held the defendant was not negligent. The sweeps should have known, given their experience,

Answer 142

due to qualifications or representation, holds themselves to a reasonable degree of skill and care, they can be held liable if they fail to meet that standard. In Bolam v Friern Hospital Management Committee (1957), the claimant undergoing therapy claimed negligence, relaxant drugs, and restraint. As medical opinion varied, the court ruled the doctor wasn't negligent,. Phillips v William Whitely (1938) exemplifies this, where a defendant, a skilled ear piercer, faced no liability for a disease contracted after ear-piercing, as the standard applied was that of a competent ear piercer, not a medical practitioner.

Answer 143

If a defendant complies with accepted and current good practice this may be evidence of acting within the relevant duty of care. Thompson v Smiths Ship Repairers Ltd (1984) – the defendant employer did not provide ear protectors to their employees. This was held not to amount to a failure to take reasonable care until they had been alerted to ensure the workers used them via a government circular.

Answer 144

Even though all reasonable care has been taken, the claimant may still suffer damage. Proof of damage to the claimant does not necessarily prove the defendant failed to take reasonable care. Luxmoore May v Messenger May Bakers (1990) – the defendants were auctioneers who failed to correctly value two paintings owned by the claimant. As a result, the claimant lost money when they were sold. It was held the claimants had failed to prove that the defendants had acted without reasonable care i.e., a competent valuer could have made the same mistake.

Answer 145

The burden of proof in negligence normally falls on the claimant and he must prove his claim on the balance of probabilities. However, if the doctrine of ‘res ipsa loquitur’ applies, the burden falls on the defendant to show he was not negligent.

Answer 146

The following conditions must be present for the rule to apply. 1) the defendant must have exclusive control over the things that caused the damage. 2) the cause of the accident must be such as would not normally happen without negligence 3) the cause of the accident must be unknown i.e., it can only be relied upon where the sole explanation for what happened is the negligence of the defendant, yet the claimant has insufficient evidence to establish the defendant’s negligence in the normal way

Answer 147

Scott v London and St Katherine Docks Co [1885] applied the doctrine of res ipsa loquitur, as large bags of sugar falling from the defendant's warehouse door implied fault on the defendant's part, making them liable for the dockworker's injuries. Res ipsa loquitur is invoked when evidence strongly indicates that the defendant breached their duty of care for thxactly how it occurred. T.

Answer 148

For a claimant to succeed in a negligence claim, he must not only show that the defendant owed him a duty of care and breached that duty of care, but he must additionally prove that the damage or loss he suffered was as a result of the defendant’s breach. There are two factors/tests necessary for this element. 1. Causation in fact - ‘but for’ test (Did the defendant cause the claimant’s damage?) 2. Causation in law – ‘remoteness’ test (Is the loss or damage reasonably foreseeable?)

Answer 149

for a claim to be valid must 45iohave link between the defendant's breach of duty and the suffered damage. needs to prove, on the balance of probabilities, that the defendant's negligence directly caused or significantly contributed to the injury or loss. In Barnett v Chelsea & Kensington Hospital Management Committee (1969), although the doctor's failure to attend was deemed negligent, it was concluded that the negligence did not cause the patient's death, as the patient would have died regardless. in McWilliams v Arrol (1962), the claimant's argument failed as it was shown that the unavailability of safety belts did not substantially contribute to the accident, as the husband likely would not have worn one even if available.

Answer 150

This rule states that any damage must not be too remote which means it must be reasonably foreseeable. It follows that the defendant may not be liable for all results of the breach. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.

Answer 151

In Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mount No. 1) (1961), the court ruled that the damage caused by a fire resulting from an oil spillage was too remote to hold the defendants liable because it was not reasonably foreseeable at the time. However, if the type of damage is foreseeable, the defendant is generally held liable, even if the exact cause or severity may not have been anticipated. Hughes v Lord Advocate (1963) exemplifies this principle when Post Office workers' negligence led to severe burns for two boys, even though the precise sequence of events (an explosion) was not foreseeable. Similarly, Jolley v London Borough of Sutton (2000) affirmed the rule when the Council was held liable for injuries to a claimant, even if the exact way the harm occurred could not be foreseen, given the foreseeable danger posed by the derelict boat

Answer 152

The situation of an intervening act usually applies in circumstances where the negligence of the defendant has triggered a sequence of events leading to the harm suffered by the claimant. The intervening event may be the act of the claimant himself, or a third party over which the defendant had no control. The court must decide whether the new act is sufficiently serious to be the cause of the damage rather than the original act. For example, Zac negligently crashes into the back of Yvonne’s car. Yvonne, who is bruised and disorientated by the crash, steps out of her car without checking the traffic and is run over by a van being driven at a great speed in the opposite direction. As a result, Yvonne’s legs are damaged. At the hospital, the surgeon is negligent, and Yvonne eventually has her legs amputated. Zac’s initial negligence triggered the sequence of events, but the court will decide if the intervening actions of the van driver and doctor broke the chain of causation between Zac’s original negligence and the final loss suffered by Yvonne.

Answer 153

ometimes an intervening act will break the chain of causation and if this is the case the defendant will not be liable for damage caused after the break. McKew v Holland & Cubitts Ltd (1969) – the defendant negligently injured the claimant’s leg The claimant attempted to descend a steep stairway without using the handrail, and he suffered injuries when his leg he jumped to avoid falling headfirst, and badly injured his ankle, causing a permanent disability. It was held the defendant was not liable for the injuries sustained in the fall. When the claimant descended the stairs, it was an intervening act which was not reasonably foreseeable to the defendant.

Answer 154

he defendant must take his victim as he finds him. If a victim has a particular susceptibility or weakness (a thin skull or a weak heart, for example) and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries. Smith v Leech Brain & Co (1962) - The claimant’s husband was splashed on his lip with molten metal which was a reasonably foreseeable splash injury. However, his body cells were pre-cancerous at the time, and he subsequently developed the disease and died. It was held that the defendant was liable even though the only foreseeable injury was a burn.

Answer 155

Volenti non fit injuria (no wrong is done to one who consents) is a defense that absolves a defendant from liability when a claimant willingly agrees to assume the associated risks. For this defense to be valid, the claimant must fully comprehend the risks involved and voluntarily accept them, either explicitly or implicitly. The test is subjective, requiring the claimant to be aware of and willingly accept the risk. If the claimant has no genuine choice but to accept the risk, the defense will not apply. In Smith v Baker (1891), the claimant complained about the danger posed by the defendant's crane but was ordered to continue working. When injured by a falling stone, the court ruled against the defense of consent, as there was no evidence that the claimant had voluntarily agreed to the risk of injury.

Answer 156

In Stone v Taffe (1974) – the claimant’s husband was killed when he catapulted himself down an unlit staircase in the defendant’s pub. The claimant’s wife and friend had made their way down safely before the deceased. It was held that damages should be reduced by 50% to take account of the lack of care taken by the deceased.

Answer 157

The law requires that occupiers have a legal duty to keep the structure of their premises in a reasonably safe condition. This duty extends to, for example, a hotel owner taking care to ensure that floors are not too slippery when polished or cleaned. If an occupier fails to do this and harm is caused, then liability may exist under the Occupiers’ Liability Acts of 1957 or 1984.

Answer 158

The 1957 Act covers the liability of an occupier to visitors. A visitor is someone who has the consent of the occupier to be on the premises and the consent can be express or implied. Examples include, employees, customers, window cleaners, meter readers and family members. The permission may be restricted in terms of time, place, and purpose. If the visitor does not comply with these restrictions, he will become a trespasser and will no longer be a visitor. For example, if permission is given for a window cleaner to access a kitchen in the house to fill up a bucket of water, he will become a trespasser if he decides to go upstairs or into another part of the building also covers those who have a legal right to be on the premises e.g., police, fire fighters and anyone entering premises that are open to the public.

Answer 159

Wheat v Lacon (1966) states the occupier is the person who is in control of the premises at the time of the accident. This means that if premises are unoccupied, e.g., due to refurbishment, the builder, shop fitter, plumber, etc. who causes a hazard will be liable to an injured person Wheat v Lacon - the defendant owned a pub run by a manager. The manager took in paying guests who stayed in rooms on the first floor of the property. One of the paying guests fell down a staircase and was killed. It was held that for the purposes of the Occupiers’ Liability Act 1957, both the defendant and the manager were ‘occupiers’ of the premises as they had control over the premises (although neither was liable on the facts).

Answer 160

The need to take reasonable care means there is no duty to eliminate all risks. Visitors are expected to take some responsibility and be aware of and avoid normal hazards. in Lewis v Six Continents (2005) a hotel owner who failed to ensure that an upstairs window had restricted openings did not breach his duty when the claimant (an adult male) fell out the window.

Answer 161

Occupiers are obligated to take reasonable care, and liability is not automatic if someone suffers an injury on the premises. The injured party must demonstrate that the occupier failed to implement reasonably adequate precautions. In Cunningham v Reading Football Club (1991), police officers were injured during a football match when the crowd threw projectiles due to poor stand conditions. The court found the club in breach of its duty, as past events made it reasonably foreseeable that the crowd could become violent. In Clare v Perry (2005), a hotel guest chose to climb over a perimeter wall in the dark, unaware of the drop on the other side. Suffering injuries, she sued the defendant. The court determined that the key question was whether the defendant breached the common duty of care. In this case, the defendant was not liable because the claimant's behavior was deemed unreasonable, and it was not reasonable for the defendant to guard against such foolish actions.

Answer 162

Bowen v National Trust (2011) – a tree branch fell, without warning, on a group of school children. Three were injured and one died. It was held the National Trust were not liable as the tree inspectors took reasonable care when assessing safety in the park and the injury was not reasonably foreseeable.

Answer 163

The 1957 Act makes special provision in respect of the standard of care that should be shown to: (A) children (B) skilled visitors Other visitors, such as contractors, can be expected to take precautions themselves, particularly if warnings have been given. Under s 2(3)(a) an occupier must expect children to be less careful than adults. 1. Glasgow Corporation v Taylor (1922) where a child died after eating berries in the botanical gardens in Glasgow. The corporation was liable for not fencing off or placing warning signs near the shrub.

Answer 164

B v JJB Sports (2006) where the claimant, a boy aged 10, slipped on a wet floor between indoor football pitches and sustained head injuries. The premises were owned by the defendant and the floor had recently been washed. It was held that the defendant was liable under the Occupiers’ Liability Act 1957 as it was foreseeable that the floor might be damp after cleaning, and he had failed to allow for children being less careful than adults.

Answer 165

However, we can see from the cases below that an occupier is not liable for all accidents to children – the standard of care is no greater than that of a reasonably careful parent. It is also reasonable to assume that very small children will be supervised by an adult. See the 2 cases below. 1. Phipps v Rochester Corporation (1955) – a 5-year-old boy was injured when he fell into a trench on the defendant’s land. He was not being supervised by an adult. The Corporation was not liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to unsafe places.

Answer 166

Visitors with special skills This area of law covers contractors. They are seen as skilled, and an occupier is not liable for job-related accidents. (s 2(3)(b)) An occupier is entitled to expect that a person carrying out his job on their premises will appreciate and guard against any special risk arising from his job. Contractors should be aware of the risks that are ordinarily incidental to their occupation. s 2(4) the occupier is not generally liable for injuries sustained by visitors from the actions of contractors. The occupier would be expected to take reasonable precautions e.g., by selecting a competent firm and checking the completed work. See Roles v Nathan (1963) – where the claimant chimney sweeps died from carbon-monoxide poisoning while cleaning a chimney. It was held that the occupier of the property was not liable because it was reasonable to expect chimney sweeps to know and guard against such a risk.

Answer 167

The duty of care owed to visitors can be discharged in several ways. Here, an occupier is trying to establish that he has taken reasonable care to ensure his visitors are reasonably safe. The best way of achieving this is to remove the danger. If it is not practicable to remove the hazard e.g., removal of a low beam in an old building, then an occupier must still take reasonable care to ensure visitors are safe. E.g., by placing warning signs and barriers in the building. The previous example of the low beam, tells us that under s 2(4) occupiers may be found to have taken reasonable care by giving adequate warning of the hazard. The type of warning needs to be appropriate for the visitor e.g., written warnings are not adequate for small children or for the visually impaired. Do not lose sight that occupiers are aiming to ensure their visitors are reasonably safe i.e., there is no duty to ensure they are totally safe.

Answer 168

Volenti non fit injuria (the visitor accepts the risk) – states the duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor ii. Contributory negligence – the degree of care a reasonable visitor can be expected to take is taken into account. iii. Exemption of liability – an occupier may exclude or restrict his liability to visitors if he gives proper notice of the danger e.g., ‘wet paint’. Any warning needs to be appropriate to the premises

Answer 169

Trustees of Portsmouth Youth Activities v Poppleton (2008) – Poppleton was injured when he fell at a climbing centre. He attempted to jump but fell on his head and was badly injured. The climbing centre was fitted with safety matting. It was held there was no breach of duty under the 1957 Act. The risk of falling was obvious and no reasonable person would expect the matting to protect against an awkward fall.

Answer 170

The Occupiers' Liability Act applies to trespasser The duty of care towards trespassers is limited to prevent encouraging damages claims. Occupiers do not owe the same duty of care to trespassers as they do to lawful visitors, but innocent parties unintentionally entering dangerous premises are protected. Trespassers include burglars, children playing where they shouldn't, or individuals inadvertently entering hazardous areas like construction sites. In British Railways Board v Herrington (1972), a child strayed onto a railway line through a broken fence from a public park. Despite being a trespasser, the Board was held liable for the child's injuries because they knew of the risk and could have avoided it by repairing the fence at a minimal cost.

Answer 171

Duty of care owed A duty of care is not automatically owed to the trespasser.

Answer 172

the occupier was aware of the danger on the premises or had reasonable grounds to believe that it existed;

Answer 173

Keown v Coventry Healthcare NHS Trust (2006) – the claimant, a 13-year-old child, was injured when playing in the grounds owned by the Trust. He fell from the underside of a fire escape. It was held the Trust was not liable. The danger arose from what the claimant chose to do, not the state of the premises.

Answer 174

We can see that the occupier must take such care as is reasonable in all the circumstances of the case to ensure that the trespasser does not suffer injury on the premises due to any dangers. What amounts to reasonable care will depend on the facts of the case.

Answer 175

An occupier may fulfill the duty of care to trespassers by installing warning signs, depending on the circumstances. The court considers factors such as the age of the trespasser, the type of premises, the extent of the risk, and the practicality of precautions. If the likelihood of trespassers is remote or taking precautions is challenging, the occupier can discharge their duty without extreme measures. In Ratcliff v McConnell and Harper Adams Agricultural College (1999), a student broke his neck diving into a college pool. Despite warning notices and a high fence, the college was not liable as the danger was obvious. Similarly, in Tomlinson v Congleton Borough Council (2003), the council was not liable for a prohibited lake dive as the risk resulted from the claimant's actions, and the dangers were obvious with warning notices displayed.

Answer 176

- Workers and employees work under a contract of service i.e., a contract of employment - Independent contractors work under a contract for services i.e., they provide a service under a contract to a business or individual

Answer 177

● Generally employed on a part-time/casual and agency basis ● Employer is responsible for paying National Insurance contributions and for deducting tax ● They are not entitled to sick pay ● They can claim holiday pay and are entitled to the minimum wage ● They also have protection against discrimination

Answer 178

● Entitled to claim all employment rights - E.g., sick pay, holiday pay, unfair dismissal and redundancy

Answer 179

- can take many forms e.g., company, partnership, self-employed person have less rights than employees e.g., no right to sick or holiday pay, they pay their own national insurance contributions and income tax. when a contractor is engaged in a full-time contract and is classed as self-employed but works under conditions similar to those of a permanent employee.

Answer 180

a) The contract ● What do the parties call themselves? The label given to a person is not conclusive evidence, but the court will nonetheless consider how they identified themselves. b) Financial risk and capital outlay ● Does the employer provide all the necessary equipment? An employee is generally entitled to payment and to have equipment provided by the employer c) Delegation or personal performance ● A contractor can delegate while an employee/worker must perform their contract in person i.e., personal performance is a requirement for employees and workers, they cannot delegate their work. D) covers extent employers control working hours and how much direction on how to do there work an employer can give. ● It is not always easy, especially with more flexible working patterns, to distinguish between employees, workers and independent contractors.

Answer 181

Pimlico Plumbers v Smith (2017) – Smith was held to be a worker for Pimlico, rather than an independent contractor (as stated in his contract), because of the lack of rights to substitute, despite otherwise having a high degree of autonomy. Mr Smith had worked as a plumber for Pimlico for six years. He had to wear Pimlico uniform, drive vans with the Pimlico logo and could only be contacted by customers through Pimlico. Contracts and estimates were issued in the name of Pimlico and payment was made to Pimlico. IWGB v Deliveroo (2017) – Deliveroo riders were not workers as they did not have a contractual obligation to perform work personally, they could substitute their jobs both before and after accepting a job.

Answer 182

- The relationship between employee and employer is governed by the contract of employment, which forms the basis of the employment rights Contracts of employment do not have to be in writing. ● However, s 1 ERA 1996 requires the employer to provide an employee (and worker) with a written statement of the key terms of the employee’s contract. ● The statement is designed to provide those employed with some of the conditions of their employment. i.e. it does not cover everything.

Answer 183

1. parties’names and addresses 2. the date the employee started work 3. the date on which the employee’s continuous employment began (this might be relevant where an employee has moved posts within 4. a note of any disciplinary or grievance procedure 5. Full particulars of: - pay entitlement - hours of work - any holiday entitlement and pay - any sick leave and pay entitlement - any pension rights - length of notice to be given (by both parties) - job title and brief description - if it is fixed term or continuous - place of work of the employee - any collective agreement directly affecting the job.

Answer 184

Vicarious liability, covered by the law of tort, involves holding an employer responsible for the wrongful actions of their employees, not typically for independent contractors. This concept imposes liability on the employer, even if they are not at fault, ensuring that someone financially capable is accountable for damages. Courts support this approach due to practical reasons, as employers are more likely to have the means to pay damages than individual employees. However, vicarious liability doesn't absolve the employee of personal liability. The employer can be involved in legal actions and may require the employee to contribute to any imposed damages, maintaining a dual liability structure.

Answer 185

1 Relationships akin to that of employer/employee 2. Close connection test

Answer 186

● A court may be prepared to impose vicarious liability on the grounds that a relationship akin to employment exists between an employer and a party acting under their direction. ● Cox v Ministry of Justice [2016] - Mrs Cox, manager in a prison. . A prisoner dropped a sack of rice and it burst open. Mrs Cox bent down to try and contain the spillage. While she was doing this, Mr Inder, attempted to carry two sacks past her, lost his balance, and dropped one of the sacks on Mrs Cox’s back, causing her injury. It is accepted that Mr Inder was negligent.

Answer 187

Close connection test ● The close connection test is used when the activity carried out by the employee consists of intentional wrongdoing ● This test states that if the activity which gave rise to the tort was sufficiently closely connected with carrying out designated contractual duties, the employer is liable, even if the employee was negligent or disobeying orders concerning the execution of those duties. ● The law takes the view that employers are obliged to supervise their workforce properly. ● Mohamud v Morrison Supermarkets (2016) The employee, K, verbally and physically attacked the customer without any provocation. the court found the supermarket vicariously liable due to a close connection between K's duties and the attack.swe7um [df““≥≥≥≥≥≥≥≥≥≥≥≥≥≥≥æ what mattered was the close connection between K's behavior and his job responsibilities, leading to the imposition of vicarious liability on the supermarket

Law For Business Flashcards

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