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Question 1

Lord Nicholls

Answer 1

Human rights act reserves amendment of primary legislation to parliament

Question 2

Lord Nicholls

Answer 2

Human rights act reserves amendment of primary legislation to parliament

Question 3

Ghaidan and Mendoza

Answer 3

Courts used section 3 to extend the rights of same sex partners to inherit statutory tenancy as initially House of Lords belt it would be limited tenancy but this was in breach of article 14, prohibition of discrimination

Question 4

R and mental health tribunal

Answer 4

Mental health act changed for burden of proof to be but onto mentally unwell person, instead of the person responsible for them, this was found to be in breach of article 5, the right to liberty and security.

Question 5

Lord chancellor

Answer 5

The drafting of such provisions was designed to provide protection to individuals against the state, so they may not misuse their authority.

Question 6

What elements must be shown for negligence

Answer 6

A duty to take care, a breach of this duty, damage to the plaintiff, causal link between damage and breach of duty, damage must not be too remote

Question 7

Lord Oliver

Answer 7

A duty of care will only be imposed if it was foreseeable that negligence by the defendant would harm the plaintiff and there was sufficiently close relationship between the plaintiff and defendant to justify imposing the duty of care and it would be just and reasonable in all the circumstances to impose a duty of care

Question 8

Negligent misstatement

Answer 8

Hedley Byrne and heller - held that if one party gives information they know or ought to know would be used by the other party resulting in an economic loss there is negligent missstatement

Question 9

Nervous shock

Answer 9

McLoughlin and obrian, mother wasn’t at accident of husband and child but was there two hours later and suffered nervous shock as a secondary victim and won the case because it was foreseeable

Question 10

Causation test?

Answer 10

The but for test Wiltshire g Essex area health auhteoty

Question 11

Wiltshire and Essex area health authority

Answer 11

Baby blind after birth but courts held the staff were not responsible because although there may have been some negligence on their behalf, there was no proof they contributed to it

Question 12

Test for causation ?

Answer 12

Material contribution

Question 13

Fairchild and glenahven-compensation act

Answer 13

Employees contracted illness due to aspestos exposure, couldn’t be told which employer was responsible so the liability was on all employers

Question 14

Novus actus interveniens

Answer 14

If chain of causation is broken, defendant isn’t liable for anything after the intervening act

Question 15

Remoteness

Answer 15

Wagon mound test - oil spilt in Sydney harbour wharf, the oil spill was foreseeable but not the fire because they experts said it wouldn’t happen so it was very unlikely so not for foreseeable

Question 16

Test for remoteness

Answer 16

Forseeability

Question 17

Hughes v lord advocate

Answer 17

Paraffin lamps and child, not foreseeable that the paraffin lamp would explode and child would get burnt but it was foreseeable that the child would be burnt so the type of damage was foreseeable

Question 18

Viscount symmonds

Answer 18

The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen

Question 19

Extent of damage

Answer 19

Eggshell skull rule - smith v leech

Question 20

Smith v Leech

Answer 20

Employee burnt due to negligence of employers, died of pre existing cancer three years later, liable for damages as they contributed to the damage

Question 21

Remedy

Answer 21

The principle of remedy for damages is to put claimant back into position before damages

Question 22

Questions in exclusion clause

Answer 22

Does the clause conform to common law rules on exclusion clauses, has it been incorporated into contract, does the clause cover the breach, does the clause fall out of unfair contract terms and consumer rights act

Question 23

Is clause incorporated?

Answer 23

If not in signed document, must be contained in contractual document, brought to notice of the other party before or at same time contract is entered into, reasonable steps taken to point out existence of contract

Question 24

George Mitchell and Finney lock seed

Answer 24

Clause that defendant only liable for price of seeds not what cabbages would be worth, clause was in contract , it covered the breach, but it was not fair and reasonable because the seller should have known they were defective and the buyer had no way of knowing they were defective