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Flashcards in Michaela Parkin Deck (43):
1

Types of law with descriptions and examples

- Statute Law:
Acts of Parliament. Superior law that cannot be challenged by the courts (save the European Courts where an Act may conflict with European legislation). An Act must go through the full process of debate, be approved by both houses of Parliament and receive the Royal assent.

- Common Law:
Laws made by judges from judicial precedent. E.g murder is an offence under common law, no statute required.

2

Hunting Act 2004 example

House of Lords did not approve, the speaker at the time invoked the Parliament Acts 1911 and 1949 allowing the commons the overrule Lords as no agreement could be reached

3

R v R 1991 example

1958 Sexual Offences Act did not eliminate previous judicial precedent that if married then cannot be rape R was found guilty of attempted rape of his wife and appealed. Both court of appeal and House of Lords upheld the rape conviction -> common law changed. In 2000s Sexual Offences Act amended so also in statute law.

4

Criminal Court System

- Magistrates Courts: minor crimes, either-way cases or if the case is indictable-only, the magistrates’ court will generally decide whether to grant bail, consider other legal issues such as reporting restrictions, and then pass the case on to the Crown Court

- Crown Court: (indictable crimes such as rape, murder, robbery)
It deals with serious criminal cases which include:
Cases sent for trial by magistrates’ courts because the offences are ‘indictable only’ (i.e. those which can only be heard by the Crown Court), ‘either way’ offences (which can be heard in a magistrates’ court, but can also be sent to the Crown Court if the defendant chooses a jury trial), defendants convicted in magistrates’ courts, but sent to the Crown Court for sentencing due to the seriousness of the offence, appeals against decisions of magistrates’ courts.

- High court : divisional court of the Queen's bench division.

- Court of Appeal: the highest court within the Senior Courts of England and Wales, and deals only with appeals from other courts or tribunals.

- Supreme Court: the court of last resort and the highest appellate court in the United Kingdom, although the High Court of Justiciary remains the court of last resort for criminal law in Scotland. The Supreme Court also has jurisdiction to resolve disputes relating to devolution in the United Kingdom and concerning the legal powers of the three devolved governments (in Scotland, Wales and Northern Ireland) or laws made by the devolved legislatures.

5

Civil Court System

- County court (including small claims court): only below £25,000 sue. Unlike criminal cases – in which the state prosecutes an individual – civil court cases arise where an individual or a business believes their rights have been infringed.

- High court (Queen's bench division, Chancery division, family division):

- Court of appeal (civil division)

- Supreme court

6

Criminal law description

- State v Individual
- Regina (Queen) v Defendant (accused)
purpose to punish
- Burden of proof is on the Crown prosecution service
- Standard of proof: beyond a reasonable doubt meaning that the defendant doesn't have to prove they didn't do anything, crown prosecution service has to prove that they did

7

Civil law description

- Individual v Individual
- Claimant v Defendant
purpose to compensate
- Burden of proof is on the claimant
- Standard of proof: on a balance of probabilities meaning the judge will decide who has the better evidence, both have to make their own cases as to whether something happened or not.

8

Jury

18-75 from the electoral register, 12 members, decide questions of fact and reach a verdict. More representative, more people to convince can be positive, judged by peers.

9

Magistrates

Undergo training, paid expenses only, not legally trained, decide the facts, sentence or commit to crown court. Limited sentencing powers max 6 months for a single offence (12 months in total) max £5000 in fines.
Clerks to the justices who are legally trained advise the magistrates.

10

Judges

Practicing barrister or solicitor of at least 5 years. Appointed by judicial appointments commission. Supervises the conduct of the trial/case. Interpret and apply statute and common law.
- Civil: questions of fact and law, reaches a verdict and awards a remedy. More powerful in these courts as can decide whether guilty or not.
- Criminal: sums of the evidence to the jury, directs them as to the law and passes a sentence

11

Who are superior and inferior judges?

Superior:
- supreme court
- Lord justices of appeal that sit in the court of appeal
- high court judges

Inferior:
- circuit judges, full time and sit in the county or crown courts
- district judges sit in the county or magistrates courts
- recorders are part time judges that usually sit in the county court and crown court

12

What are barristers and solicitors?

- Barristers: advocates, legal consultants, junior barristers & Q.C, self-employed but share chambers with other barristers, 'hired gun' and private access. Will get documentation from solicitors to use on day of trial, little relationship with client.

- Solicitors: mainly advise clients, draft contracts, wills etc. Can represent clients in lower courts, majority of work non-contentious, judicial opportunities.

13

What is tort law

Essentially the interference of land, person, belongings and reputation. Tort is a civil wrong which can be sued for (a lot is covered by insurance).
' Tortious liability arises from breach of duty imposed by law; and its breach is resourced by an action for unliquidated damages'.

14

What are:
- breach
- damages
- tortfeasor
- tortious

Breach: broken ones obligation
Damages: compensation/money
Tortfeasor: one who commits a tort
Tortious: having the nature of a tort; wrongful act

15

Contract Law and Tort Law

Contract: contractual relationship, choice
Tort: duty fixed by law
individual v individual
- burden of proof on claimant
- standard of proof: on a balance of probabilities

(If known guilty, will usually settle out of court to save money and reputation)

16

Criminal Law and Tort Law

Victim in both cases
Criminal: state v defendant (individual)
Tort: Victim v defendant (individual v individual)
- burden of proof on c.p.s
- beyond reasonable doubt

17

Tort damages and time limits

The aim of tort damages:
So far as possible to place the injured party into the position (financially) they would be if the tort had never been committed
- the common law remedy, as of right, to the successful party
overall claim = time off work, taxis etc
Time limits to bring claims for damages:
- 3 years for personal injuries
- 6 years for all other torts
- claims for equitable remedies have no formal time limits by delay defeats equity, these are alternatives to money and are down to the judges discretion

18

What is negligence and who could sue pre-20th century?

Failure to exercise reasonable care, thereby causing injury to others or damage to property
Pre-20th century could only sure someone for harm if there existed a pre-defined relationship or contract (so lots of people suffering injuries could not sue).

19

Donoghue v Stevenson 1932 example and significance

Landmark case which created the modern concept of negligence, by setting out general principles whereby one person would owe a duty of care to another. Lost at county, high and appeal courts. Supreme court (then the house of Lords) ruled in Donoghue's favour. 3-2 decision that Stevenson owed Donoghue a duty of care. Lord Atkin used the neighbour principle.

20

What is the neighbour principle?

The principle that one must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.
Neighbours: 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 that are called in question.

21

What must a claimant prove in order to establish negligence?

- the defendant owed a duty of care to the claimant
- the defendant breached that duty of care by failure to conform to the required standard of conduct
- the defendant's breach of duty caused the harm, injury or damage to the claimant

22

What is the three-stage test?

Established in Caparo Industries v Dickman (1990). Important for novel new ways of causing industry. Under Donoghue v Stevenson, Dickman would have owed Caparo a duty of care but the precedent couldn't be set that every accountant has a duty of care to investors as they don't produce their figures for them.

1. Forseeability: was the danger or injury to the claimant forseeablr
2. Proximity: was the relationship between the claimant and the defendant sufficiently proximate?
3. Is it just and reasonable to impose a duty of care?

23

Forseeability of harm example

Home Office v Dorset Yacht Club (1970)
Court of appeal held that the home office should not be liable for the damages on grounds of public policy, and that the work of prison authorities should not be hampered. Prisoners who have escaped or been released on parole have caused damage but prisons were not responsible. However, the house of lords held that the home office was liable as the neighbour principle was applied with emphasis on forseeability.

24

Proximity example

Bourhill v Young (1943)
To find a duty of care the claimant must be forseeable or proximate to the scene of the accident. House of Lords denied that Bourhill had been close enough or forseeable to Mr Young. 'Unable to see how he would reasonably anticipate that his collision with a car would cause noise that would result in physical injury by shock to a person located where Bourhill was' -> no duty of care

25

Just and reasonable example

(policy considerations)
The 'floodgates' argument; and would the imposition of . a duty of care prevent the defendant from doing his job properly?
Hills v Chief Constable of West Yorkshire (1989)
Claim was struck out in the House of Lords on the basis that a) the police owed no specific duty of care to a member of the general public and b) on public policy grounds. If the precedent was set, money that would be spent defending the police in courts would take up all their finances.

Leach v Gloucester Constabulary (1999)
There was a forseeability of harm and proximity but ruling against the police was not in the public interest as they cannot owe a duty of care to every person in every interview room as it would have a negative impact on police interviewing.

26

New Black Cab case

Met police lost landmark case 2018 - victims of serious crime may be able to sue the police for failures un their investigations. Two rape victims of John Worboys sued the police for their failures and causing them mental harm. Provided that sufficiently serious, failures in investigations with give rise to liability on the part of the police.

27

What is breach?

Once a duty of care has been established, the courts must consider whether there has been a breach of that duty.

28

Bogle v McDonalds (2002)

Court upheld that those who buy teas or coffees can be taken to know that such drinks sometimes get spilled and that they are served at hot temperatures which cause serious and painful injury -> no duty on McDonalds to warn their customers

29

Risk recognition and and objective standard

The law recognises that we take risks, in such instances we must take adequate precautions and act reasonably.
An objective standard: the court will consider a number of factors when determining whether the defendant's behaviours meet that expected of a reasonable man.

30

Objective standard - Magnitude of harm example

Bolton v Stone (1951), defendants took precautions, was not a reasonably forseeable consequence of their conduct, risk too remote

31

Objective standard - Practicality of precautions

Latimer v AEC (1953), held that defendants had not been negligent and they had taken all reasonable precautions to minimise the possibility of risk to their employees -> no breach of duty of care and not reasonable to shut down the entire factory

32

Objective standard - special characteristics of the claimant

Paris v Stepney Borough Council (1950)
Claimant was not provided with safety goggles and employers were aware he was already blind in one eye -> defendant was in breach on its duty of care to the claimant as because of his condition there was a strong potential that harm would be particularly great. A reasonable person would take greater steps than usual to protect him.

33

Objective standard - special characteristics of the defendant

Mullins v Richards (1999)
Court found that the standard expected of a 15 year old child was not the standard expected of a reasonable person. Ordinary prudent 15 year old could not have forseen the injury.

34

Objective standard - inexperience

Nettleship v Weston (1971)
Inexperience is not a relevant characteristic to take into account

35

Professional person, expected standard
Bolam v Friern Barnet Hospital Management Committee (1957)

The defendant must show the degree of competence usually expected of an ordinary professional skilled in that profession.
Bolam test: where the defendant has represented himself as having more than average skills and abilities, 'as all doctors do', the expected standards must be in accordance with a responsible body of opinion. If a doctor reaches the standard of a responsible body of medical opinion, even if some others may disagree, they are not negligent.
(Altered in 2015, doctors must now also explain why they chose a particular course of action over others)

36

Factual causation
Barnett v Chelsea & Kensington Hospital Management Committee (1969)

'But-for' Test: would the claimant have incurred the damage but for the defendant's negligence?

Held on the 'but for' test, even if he had received medical attention, he would have died so although the hospital had been negligent, this negligence was not the cause of death.

37

Legal causation
Overseas Tankship Ltd v Morts Dock & Engineering co (1961)

Builds upon the facts in terms of criminal culpability. Damage which is not reasonably foreseeable is too remote from the breach and therefore not recoverable.

Held that Overseas Tankship could not be held liable to pay compensation for the damage to the wharf as the fire caused could not be forseen by a a reasonable person.

38

Liability
Smith v Leech Brain (1962)
Vacwell Engineering Co. v BDH Chemicals Ltd (1971)

Once it has been established that the damage was a reasonably foreseeable consequence of the defendant's breach, they will be liable for all the damage of that type, no matter what the extent is.

Establishment of 'egg-shell skull' rule - an individual is held responsible for the full consequences of his negligence, regardless of extra, or special damage caused to others. As the burn was foreseeable damage, and caused the cancer and subsequent death, Leech Brain was liable.

'A tortfeasor is liable for negligent damage, even when the claimant had a predisposition that made that damage more severe than it would otherwise have been'

Held that the defendant was negligent and failed their duty of reasonable care as they did not give sufficient warnings and know their own product well enough. Did not matter that the damage was more extensive than could be foreseen; only the kind of damage has to be foreseeable.

39

Who are primary victims
Page v Smith (1995)

1. Those physically injured in the event caused by the defendant and also psychiatrically
2. Those put in danger of physical injury to themselves but get psychiatrically injured instead of physically

Held that page was a primary victim, so it didn't have to be shown that nervous shock or psychiatric injury needed to be a foreseeable consequence, only had to show that a personal injury was foreseeable.

Take the plaintiff as one finds him

40

Who are secondary victims?
Alcock v Chief Constable of South Yorkshire (1991)
McLoughlin v O'Brian (1982)

Those not put in physical danger but suffer psychiatric injury as a result of witnessing such injury to others. Requirements:
- C's psychiatric injury and the means by which it has been caused
- C's relationship to primary victim - close ties of love and affection
- C's proximity to the shocking incident or immediate aftermath
- Witnesses the event with their own unaided senses (so not through t.v)
- Shock must be sudden not gradual

House of Lords extended the class of persons proximate to the event to those who come within the immediate aftermath of the shocking event.

41

Contributory negligence defence

Where harm is attributable partly to the fault of the defendant and partly to that of the claimant;
any award of damages may be reduced by reason of the claimant’s contributory negligence; but never by 100%!! e.g. not wearing a seat belt = 25% reduction in damages payable
Owens v Brimmell 1977:The defendant estimated that they had both drunk 8 to 9 pints of beer. At 2 am, the defendant was driving the plaintiff home, lost control of the car and crashed into a lamp post. The plaintiff was not wearing a seat belt. He received a heavy blow on the face either from hitting the lamp post when he was partially thrown from the car, or from facia board of the car while sitting the passenger seat. The plaintiff suffered very serious injuries, including intellect impairment. The defendant admitted that he was guilty of negligence in the plaintiff’s action for damages, but alleged that the plaintiff was guilty of contributory negligence for his failure to wear a seat belt and recklessness as to the possibility that the defendant’s ability to drive was impaired by alcohol.
Badger v Ministry of Defence [2005]
The Claimant was the widow of Reginald Badger who died of lung cancer.During his employment he was exposed to asbestos dust and fibres. They were causative of the lung cancer that killed him. He also smoked. His smoking was also causative of his cancer. The Ministry of Defence admitted primary liability in February 2003. The issue before the Court was the Ministry of Defence’s contention that the claim should be reduced on account of Mr Badger’s contributory negligence in that he continued to smoke when it was alleged that he knew or should have known that doing so was likely to damage his health

42

Volenti non fit injuria

‘no wrong can be done to one who consents’
2 types of situations:
consent to the infliction of harm; and
consent to the risk of harm inflicted accidentally

43

Ex turpi causa

an action may not be founded on illegality if the doctrine applies, the claimant is unable to pursue his cause of action the principle prevents a criminal from bringing a claim against a fellow criminal.
Vellino v Chief Constable of Greater Manchester [2002]
The Claimant was a known offender and had a string of convictions. He was seriously injured when he jumped out of a second floor window having just been arrested. The police were aware that he was likely to escape and had done so on several previous occasions. They were also aware that such activity was dangerous but did nothing to prevent him from jumping. The Claimant suffered a fractured skull, brain damage and tetraplegia which rendered him totally dependent on others for support. He brought an action against the police arguing that having arrested him, they owed him a duty of care to prevent him injuring himself. The Defendant denied owing a duty of care and also raised the defence of ex turpi causa in that it was a criminal offence for an arrested person to abscond. The trial judge held that ex turpi causa excluded the imposition of a duty of care.

Revill v Newbery (1996)
Mr Revill brought a civil action against Mr Newbery for the injuries he suffered after being shot by him for breaking into his shed. Mr Newbery raised the defence of ex turpi causa, accident, self-defence and contributory negligence. The Claimants action was successful but his damages were reduced by 2/3. Newbery had to be to some extent liable, shooting isn't proportional and owed the tresspasser a duty of care.