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A-level Law 👩🏿‍⚖️ > Section B: The Law Of Tort 😈 > Flashcards

Section B: The Law Of Tort 😈 Flashcards

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1
Q

What is the literal rule?

A

You have to apply the literal definition to the law, Matter how unfortunate the consequences is - Even if it leads to obvious Unreasonableness or absurdity

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2
Q

Cases use the literal Rule?

A

Whiteley v. Chapple

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3
Q

What was the case of Whiteley v Chappel ?

What did this manifest

A

Chapple was caught inPersonating someone to vote but the person was dead

Applying the literal rule meant that he wasn’t guilty because someone who was dead is not entitled to vote

manifest absurdity

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4
Q

What was another case that used the literal rule?

A

Fisher v Bell

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5
Q

What was the case of Fisher v Bell And how did it use the literal rule ?

A

Bell Had a knife on display

I did not offer but an invitation to treat

Ruled that the display of the knife was not an offer because it was not for sale

So there was no acceptance because the seller couldn’t accept money and had the right to refuse

Parliament legalising the restriction of offensive weapons act 1959 to prevent the display a knife applying the literal rule meant by defendant was not guilty


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6
Q

What is the case where it was unfair due to the literal rule?

A

London railway Co. V berriman
Worker killed while oiling points

the widow tried to claim compensation as there was no look out for the man provided by the railway company

In the fatal accident act

For the purpose of relaying or repairing it

However when literal rule was applied, the widows claimed failed - oiling points is not relaying or repairing

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7
Q

What is the Golden Rule?

A

It’s a modification to the literal rule

Used when the literal rule leads absurdity

Used to qualify a literal rule

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8
Q

What are the two types of the Golden Rule ?

A

The narrow application

Wider application

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9
Q

What is narrow application?

A

if a word is ambiguous the judge Can choose between possible meanings To avoid an absurd outcome

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10
Q

What is wider application?

A

When there is only meaning of the word but it would lead to an absurd or repugnant situation

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11
Q

Give an example of a case that used the narrow application?

A

R v Allen - if a married person who spouse is still alive and Married somebody else has committed bigamy

however it was impossible for an existing marriage to legally marry someone

Leading to any further marriages to be void

using the literal impossible to commit the offence of bigamy the golden rule defined marriage as to go through a ceremony of marriage

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12
Q

Give an example of a case that use the wider application?

A

Alder v George

Official secrets act 1920 - illegal to be found in the vicinity of a prohibited place

The accused was found inside and arrested in the property please so we can see couldn’t be convicted

Golden rule held in the vicinity of meant to be in or in the vicinity of the prohibited place

GUILTY 

Re sigworth- Vented the murderer of inheriting the world of his intestate said mother who he killed

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13
Q

What is the mischief rule ?

A

Looks at the purpose of the law

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14
Q

What are the four factors when using the mischief rule?

A

It is the common law before the passing of the act

What is the mischief the act was trying to remedy

What was the remedyThat’s Parliament was trying to provide

What Is the reason for the remedy



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15
Q

What case needed the Mischief rule? 

A

Smith V Hughes

Soliciting in the streets against the streets offences act 1959

How to increase listing from the windows of the house what is the aim and mischief of the act to stop people on the streets from being solicited

Elliot V grey

Road traffic act car parked outside house without a valid insurance but had no petrol in its tank in a claim for that it isn’t driven

no need for insurance

however road traffic act 1930

the mischief was protection of third parties

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16
Q

What is a case that shows the limitations of the use of the mischief rule? 3)

A

Jones V Wrotham Park

It can only be used where the mischief could be seen clearly from the act

it was apparent that Parliament had overlooked the problem

additional words required to be stated with a high degree of certainty

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17
Q

What is the purposive approach?

A

Court decides what Parliament was trying to achieve when passing the legislation

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18
Q

What is the purposive approach Influenced by?

A

The European approach to statutory interpretation

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19
Q

What does the purposive approach look to?

A

Social propose of legislation rather than focusing on the

evil act that might have been created to deal with

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20
Q

How did Lord Denning establish a more purposive approach ?

A

Giving greater credence (power) to the spirit of law rather than the letter of law 

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21
Q

What does the purposive approach seek to give?

A

To give affect of the true purpose of legislation

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22
Q

What did the Pepper V Hart case ensure that judges would have? 

A

reference to materials

to find the intention of parliament

that has resulted to them referring to Hansard

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23
Q

Has Parliament contributed to the purposive approach?

A

Producing modern legislation

the fraud act 2006 illustrates examples of fraud 

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24
Q

Give us a case example of the purposive approach?

A

Jones v Tower Boot 1997

Young black worker faced physical and verbal abuse by workmates

under the ace relations act 1976 employees argued that the behaviour was not part of the job

the court use a purposive approach to state that the purpose was to eliminate discrimination and agreed with the employees argument 

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25
Q

What is in Internal aids of interpretation ?

A

The aid needed approach a statutory interpretation can be found within the statute itself

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26
Q

What are the fives things in internal aid of interpretation?

A

Long titles - confirm purpose of statute through a simple definition

Schedule - gives a more detailed clarification - unfair contact terms act

Headings + marginalised notes - in order to clarify parliaments intentions (added during drafting the act )

Interpretation sections - offences and act that is broken is defined - theft act 1968

Preamble- outlines what the statute covers and it’s purpose

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27
Q

What do older acts in the internal aids of interpretation have?

A

preamble- outlining what the statute covers and it’s purpose

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28
Q

What do modern acts now have?

A

Interpretation sections

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29
Q

What is Hansard ?

A

When everything said in parliament my MPs is recorded

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30
Q

What is external aids of interpretation?

A

When mischief rule directed them to it

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31
Q

What are the 5 ways we can use external interpretation?
Denning quote ?

A

Hansard- (Davis V Johnson )Denning argues no use - griping around in the dark with no lights on

Allowed use with words are ambiguous or leads to uncertainty

When statements realised upon are clear

Prev acts of parliament - and earlier case law

Law reform reports from law commission

International treaties

Explanatory notes 📝- gov

Dictionaries can be used- (Vaughan v Vaughan)

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32
Q

What is persuasive precedent?

A

Any decision or judgement that doesn’t need to be followed

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33
Q

Give an example of persuasive precedent?

A

obiter dicta

R v Wilson - GBH - dropped - had consented
R v brown - consent- would have been legal if it was tattooing

DPP v smith

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34
Q

What are the reasons of lower Court Not binding to but can be persuasive ?- Example ?

A

Persuasive precedent

RV R - can rape wife - given away

Sc agreed with COA

Influenced lead by judgment

Offence of rape was included and available to husbands 

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35
Q

What are the three things we need to talk about when talking about persuasive precedent?

A

obiter dicta

Lower courts aren’t not binding but are persuasive

Privy councils - In the courtroom three we can decide an appeal from All common wealth countries 

Dissenting judgement- judge disagrees with majority verdict 

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36
Q

How does dissenting judgement influence persuasive precedent?

Examples

A

It’s when the judge doesn’t agree on the magority verdict They help persuade future cases as society develops Lord Denning in Caparo V Dickman helped condler v Crane Christmas his statement was relied on 40 years later in the case

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37
Q

How does the privy council influence persuasive precedent?

A

In court room three Judges can decide on the appeal from all Commonwealth countries-

Judges in the Supreme Court decide law that would be influenced by some issues around uk law 

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38
Q

What was the orbiter dicta Of DPP V Smith?

A

Paint or are the chemicals in the hair would’ve been ABH

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39
Q

What is the use of obiter dicta?

A

It’s used to speculate and persuade

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40
Q

How do we avoid a precedent?

A

Distinguish it -Looking at what’s the difference so we see what facts are significantly different from the precedent

E.g. Balfour v Balfour - Involved agreement between married couple to pay Wi-Fi husband was abroad no contract between them domestic parties no intention

and Merriff v Merriff - Couple going through divorce has been agreed to pay with money describe distinguished from Balfour agreed to separate intention to make contract

overruling- It’s when you change the previous precedent because they believe it’s wrong

However you can only do a lower court decision and not your own precedent

Also using Supreme Court - However you can use a practice statement to overall previous precedent invoking power

Pepper V Hart of the Davis V Johnson

Using Hansard

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41
Q

What is the case of R V G+R?

A

Overruled the case of R v Cordwell changed recklessness from an objective- would a reasonable person realise the risks to a subjective - did the defendant realise the risks ?

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42
Q

What are the three factors that the Court of Appeal can use the overall their previous precedent? 

A

1- Supreme Court have already overboard their own precedent
2- If there are two conflicting court appeals you can choose one

3- per incuraim


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43
Q

Why can the criminal division of Court of Appeal overrule their own law? Example?

A

Someone’s liberty is at stake overall a previous if the Lord misapplied or misunderstood

R v Gould

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44
Q

What is reversing?
Example

A

When you change your decision of A lower court in a current case

Gillick v wite beck health 

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45
Q

What is strict liability?

A

when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action

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46
Q

Give an example of strict liability?

A

Rylands v Fletcher

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47
Q

What acts have had statutory intervention?

A

Occupiers’ liability act of 1957 and 1984

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48
Q

What is public policy ? Eg

A

Judge will decide a case based on what is best for the whole society - linked to floodgate argument - Cole v Davies Gilbert and others 2007

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49
Q

What is justice ?

A

Laws tries to create fairness and can be used to elevate the legal rules and theory

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50
Q

Why is justice important?

A

Important at when the defendant owned the claimant a duty of care

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51
Q

What is the human rights act 1998?

A

Set out fundamental rights and freedom TAHT everyone in the uk is entitled to

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52
Q

What is Common law ?

A

The body of law - based on court decisions rather that codes or statutes

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53
Q

What is fault based liability

A

A type of liability predicted on some sort of wrong doing

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54
Q

What are the four institutions of the EU?

A

The European commission
Council of EU
European Parliament
European Court of Justice

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55
Q

What is the European commission? example?

A

27 commissioners represent each country - specific departments

Create policy that can be voted on in council
- draft all law
can bring cases against any state that fails follow or implement EU
law - Guardian role

Have control over your budget to not elected may be a issue as payment e.g. Roads in Greece

56
Q

What is the Guardian role?

A

When the European commission can bring any case against any state follow or implement EU law

57
Q

What are councils of EU?

A

When each country in the EU has a person from each state and any amendments to the law

through co-decision- work with European Parliament can only pass law if achieve double of majority rule -

55% of members of the council must agree with law percent of the population

protecting the country’s interest

58
Q

What is European Parliament?

A

When people are democratically elected votes for MEP
happens every five years to get accepted or rejected any country That wishes you join

Can co-decide on laws views and not binding

59
Q

What is the European Court of Justice?
Examples ?

Article ?

A

But that will apply all EU law oppose sanctions on countries and individuals who breech EU law

27 judges for each country who is based in Luxembourg

Shown in Tara-graphs v UK

UK didn’t want to fit them in lorries so they were gonna implement it so they were fined

Article 267 treaty on functioning of the EU allows a domestic court to raise primarily rulings case -advice on law

60
Q

What are the four main types of EU law?

A

The treaties
regulations
directives
decision

61
Q

What is the treaties? examples ? What kind of effect?

A

The treaties on European Union - Article 50 + rights
and functioning

Countries decided to agree on free movement to leave the EU cover main rules and regulations of EU

Both have the direct effect(country have to follow law)

62
Q

what are the two types of direct affect?

A

Horizontal- an individual can sue another individual

Vertical - individual can sue the state

63
Q

What kind of direct effect does treaties have?

A

Both vertical and horizontal

64
Q

What are regulations?
who are they proposed by?

Examples? + direct effect?

A

Proposed by commission brought into law by council
set specific policy for all countries
Enforceable in all countries as soon as made

Flight delays compensation regulation eight hours £450 -

Re Taragraphs v UK

Horizontal and vertical

65
Q

What is a directive? (EU law) examples ?

A

Set general policy by lead to the member states to implement in a way that is consistent with their country - orders in Council

Working time directive knows how many hours you work

e-commerce directive minimum expectations present order summary

Vertical Only

66
Q

What effect can we use if there is failure to implement the directive? 

A

Vertical direct effect

67
Q

What are the three ways vertical direct affect can be used?

A

francovich V Italy
Directives impose individual rights rights are clear
harm suffered is due failure 

68
Q

What is decision ? (EU law) eg

A

Need a policy for a set country or group (business) and your facts are selective few.

Karen Murphy V sky 🌌

Pub landlady show sky sport got license from Greek to be cheaper for movement of services
only allowed games no commentary part of private business cannot do it now not In EU

69
Q

What is the impact of the EU law? 3)

A

UK entered EU in 1972 became binding in 1973
created European committee act given effective of EU law
section 2 and section 4 -EU law must be read and given effect in a way that is consistent with domestic law

70
Q

What was the issue with the impact of the law and European committee act and section 2 and section 4?

A

What happens when the EU and UK will conflict Parliamentary sovereignty Parliament was so lawmakers

71
Q

What are some cases that the state that issue of EU and UK law conflict?

A

Van Gend en Loos v Netherlands countries have limited their Sovereign rights due to treaties imposing obligations right on states and individuals

Costa V ENEL - Are you law cannot be over ridden due to its special nature

Macarthy’s V smith - Lord Dennings - If the time should come where our parliament doesn’t cut deliberately repudiating the treaties it is my job to follow Parliament

Back to tame EU Spanish fishermen catch not free movement agreed to have freedom you agreed judgement of Lord bridge - over rode lord denning -  common law (EU) must take priority

HS2 🚅 action alliance transport v SS for transport - just had to leave but still a member of the UK in the same weight as yhe constitution reform at the Magna Carta and parliamentary lawmaking

About balance exercise

72
Q

What has the UK done? Reacting the EU?

A

Left the EU yet has the repeal act (bill) that adopted EU law 

73
Q

What are the 7 areas of tort law?

A

Negligence

Occupiers’ liability

Vicarious liability

Nuisance

Rylands v Fletcher

Defence

Remedies

74
Q

What is negligence?

A

An act that neglects the safety of others

75
Q

What is occupies liability?

A

Owners are responsible of the well beings for the people on their land

76
Q

What is vicarious liability?

A

When an employer is responsible for other employees well-being

77
Q

What is nuisance ?

A

An act that leads to negligence

78
Q

What is Rylands V Fletcher

A

Tank uses water escapes and floods the house closer to the farm

79
Q

What are the three things needed to prove negligence?

A
  1. If person you are prosecuting is in a Duty of care
  2. Was the duty breached - falls below standard of reasonable person
  3. Must be resulting damage
80
Q

What are the things needed to confirm Vicarious liability? 6) stage one

A

must be an employee

Salmond criteria

1) Are they an employee ?- do they have an contact

2) Control test - does employers have control the relationship?

Yewen v Noates- if there is a clear master and servant dynamic

3) Integration test - is the employee integrated into the business -
Time role

Stevenson V Mcdonold - more than an accessory

4) Economic reality test - have to provide contact - shows you are an employee

Ready mixed concrete case

NI deductions , uniform, ownership, contract, payment method

4) fair just and reasonable test- E v English providence - nun and priest sexually assault child in childrens home

If these do not apply we see if they are

Closely connected - VC v Morrisons
MXX v Secondary school 🏫 - focus on acts similar to responsibility of employment - and fairness of it

Jehovah’s Witness V BXB

Must have relationship with a kin of employee

Is there a connection to the perpetrator

Is it fair to impose liability

5) a kin to employment - claimant v Barclays- doctor-Independent contract so no liability

81
Q

What are the three other things that are needed to verify if the prosecutor is liable for vicarious liability?

A

Close connection test- sufficiently connected to employment

VC v Morrison’s-Data protection breach

MXX v A Secondary school 🏫 - focus on acts similar to responsibility of employment - and fairness of it

The claim was that there was a breach and misuse of statutory duty

Motive of tortfeasor -An employer is not liable for any deliberate actions with the aim of bringing harm to the company

2.Tort must be committed
negligence case
trespass to the person exceed consensual contact

  1. Committed in course of employment



82
Q

What are the cases that are carried in the course of employment?

A
  1. Limpus V London- Bus racing it’s an injured claimant employee acts against Orders
  2. Rose V Plenty - Child helper , milkman , injured
  3. Does action in careless manner acts against orders

Century insurance V Northern Ireland

Truck driver cigarettes petrol station

Was in was around equipment and wearing uniform break within the job

  1. Paid travel time

Smith V stages

deliveryman negligence crash

  1. If the duty of care and Tort is closely connected

Caretaker SA kids- Lister V Heley Hall

connected has to take care of children get abused them historic case not connected to taking care of the school

connected to health and safety of children breaching duty of care

Mohamed V Morrisons - CLOSE CONNECTION Punch customer goes against consensual contact because customer had not consented to be punched in the face consented to have money exchanged for product

83
Q

What are some cases that are not committed in the course of employment?

A
  1. Frolic of his own

Tort feasor has chosen to do it removed from employment

Hilton V Burton
Car accident break café

  1. Twine V beans
    unauthorised lift no benefit

that does not benefit the employer look how much helping the employer would work however Twains V beans was not beneficial links to Rose V plenty

  1. Acting in a way I’m connected to employment Beard V london

Bus conductor no contract broken laws to get there

  1. Serious criminal offences policy decisions - unforseeable
    V V Merseyside police - rape
    Police officer drunken lady had equipment
84
Q

What was lord Atkins principal for duty of care?

A

You must take reasonable care to avoids acts of omission which could foreseeable injure your neighbour

85
Q

What are the original and new tests for duty of care ?

A

Caparo V Dickman - incremental (three stage test )
Proximity
Foreseeable
Fair just and reasonable

New - Robinson - can move away from test if pre-existing duty exists or it’s obvious and can be established by analogy

86
Q

How do we establish duty ?

A

Caparo v Dickman - 3 stages (incremental )
Proximity , foreseeable , just fair and reasonable
Richardson - can move away from 3 stage rule if there is a pre-existing duty exists or by an that is establish analogy

87
Q

What is the first thing thought about breach of duty or care ?

A

1) a reasonable man

Blyth V Birmingham waterWorks

Baron Alderson -Negligence is the omission of a the reasonable man

88
Q

What are the 3 number of variations of the reasonable person for breach of duty ?

A

1) professionals - defendant has skill to show what’s typical

Bolam v Barnet health management

Montgomery V Lanarkshire health board
- duty to disclose risks to patients
No guilty - acted in appropriate

DOCTOR RISK PATIENT

2) learners - Nettleship V Weston - learner driver judged as an experience driver

LERNER JUDGED EXPERIENCED

2) children and young - reasonable person of defendants age
Mullin V Richards

15 year old school girl

89
Q

What is the second thing that needs to be considered in the tort of negligence?

A

Risk factors

90
Q

What are risk factors?

A

If the claimant has anything that needs to be considered standard is changed like disability

Reasonable man performing tasks in circumstances

91
Q

What are the five risk factors that need to be considered?

A

Special characteristics of claimant- and if the claimant requires more care it’s meant to be given and the requirement is raised

Paris V Stepney -I’m not supplying goggles on the one eyed welder

The greater risk to the claimant meant that the Greater precautions are normal should be taken

the size of risk - The bigger the risk the more precautions that might be taken

Haley V London electricity board - Blind came and tripped over Hammer - warning was not adequate for blind people

costs and practicality - If it was cheaper and easier more likely you should’ve stopped it from happening

Latimer V AEC - Factory owner had to close factory to avoid risk, disproportionate to risk involved

What are the risks known at the time - if not known no breach 

Roe v Minister of health - Invisible cracks leak with cleaning products - no knowledge- no breach

The potential benefits of the risk -Court must weigh up if some risks are a benefit to society

Daborn V Bath Tramways - Not appropriate to reduce train journey times to 5 mph to minimise their accident

92
Q

How is Vicarious liability fair?

A

To help protect and innocent claimant allowing them on effective remedy

Employer arguable is in charge - control test - shown they have control (yewen v noakes)

Responsible for training - avoiding negligence act careless act - century insurance V NI transport

Only imposed liability if fair just or reasonable to do so E v English providence

To improve standards of care and safety

New rules - independent contractor is not an employee VC V Barclays - lack any any form of control

93
Q

How is vicariously liability not fair ?

A

1) Goes against fault principle , solely on ground that they have more money

2) If you have specifically restricted the activity and and the employee fails to listen to you - Limpus V London
Rose V plenty

3) unfair how can you control the careless acts of an employee CI V NI

4) close connections (VC V Morrisons ) rules in E V English Providence

Rules are ambiguous- not clearly explained and applied differently on case by case basis

Employer does not know where they stand - unfair

5) confused + issues with case with contradicting with each other

Lister V Hersey Hall contradicted by N V Mercysidr police

Rose V plenty contradicts with Twain’s V beans - no benefit to employer

Rules created is fair if employer benefits when they should pay

94
Q

What is the third thing for tort in negligence?

A

Damage

95
Q

What are the 6 things needed to see if t he re was damage in the tort of negligence?

A
  1. A) Causation in fact - but for test- if we remove def and injury still happened it’s not their fault

Barnet V Chelsea Kingsignton

Vomited drunk arsenic

B) Multiple causes - more than one cause by suffering a loss

Fair child V Glenhaven Funeral service- % of compensation unfair to impose all duty on one company

C. Intervening acts - Novus Actus Intervienus

Break chain of causation - prevent defendant to be liable

Reeves V commissioner of police of metropolis e - suicide underduty
Unforeseeable did not break chain of causation -

2.a) causation in law - remoteness of damage - the wagon mound - law draws line w damage that can be compressed or not

Hughes V Lord advocate

WAGON MOUND - DISCHARGE FUEL
FIRE DAMAGE SHIP- TOO REMOTE NOT LIABLE

B) type of injury to be foreseeable

Damage must be reasonable and foreseeable no matter how a far it takes or unusual it is

Bradford V Robinsion Rentals
- frostbite- foreseeable but to weather - unusual situation

C) Thin skull rule - take victim as you find them

Liable even if reason is more narrow sue to weakness of claimant

Smith V leech brain - precancerous condition
Liable for result of negligence

96
Q

What are the two acts of parliament that outline occupies liability ?

A

1957- Occupies liability act - visitors
1984- trespasses

97
Q

What are the three things we need to look at stage one within occupies liability?

A

1. Who is the visitor- section 2 of the 1957 act
Duty of care with any licensee
a person with consent to legal rights and concentual right

If a trespasser you exceed your permission

  1. Who is an occupier for both 1957 and in 1984 look if you have- ownership for control

Ownership - Wheat V Lacon- Can be more than one occupier - pub room stair dead

Control - Bailey V Armes -Parents that child on the roof of supermarket owners were unsure fell

Had no control who’s on the roof and did not know

3. What is the premises? - 1957 + 1984
Sect 1 (3) Fixed or movable structure including a vessel vehicle and other structures

98
Q

What are the occupiers liability rules in 1957?

A
  1. Visitors are owned a duty of care occupies have a duty of care to keep visitors
    reasonably safe

we don’t have to keep you completely safe

Laventon V kiapasha- slipped but not liable - kept you reasonable safe

  1. Duty of care can vary depending on type of visitor

Lower has a different level of protection

children have higher standard of care-
Cooke V Midland Railway 🚃

S.2(3) - children are alluded to danger no liability of parents support the activity thinks it’s safe 

Simkiss V Rhonda

  1. Professional visitor - lower standard of care when harm carries from something connected to the field of work

Roles V Nathan - Knew risks of Carbon monoxide

99
Q

What are the three stages that show that duty can shift to an independent contractor ?

A

Responsible to give work to contractor Haseldine V Daw - lift pludge not liable

Contractor must be competent - Bottomly V todmorton

Occupier must check the work - woodworth V mayor of Hastings

100
Q

What is stage 2 of Occupies Liablity ? 2)

A
  1. Must check if harm is suffers in the state of the land Davis V cole- Duty not stand the test of time - cannot sue council (hole made by accident )
  2. Harm is suffered must be foreseeable - Jolley V Sutton - argued not foreseeable to rebuild but was if child was near - crushed
    Was on Council Land - occupies the boat - allowing the boat to stay there - allured children to it (danger )
101
Q

What were the defences to prevent multiple compensation?

A
  1. Sc 2 (4) If compete defence was enough to keep you reasonably safe Rae V marrs- spoken or writing
  2. Exclusion clause - person limited their responsibility- cannot exclude liability for personal excluded liable - car park
  3. Contributory negligence - contribute to your own negligence - limited compensation

Volenti non fit injuria - (Titchna V British rail 🚃) consent to negligence- deduct 100% of compensation

102
Q

What is the contributory negligence under ?

A

The contributory negligence act 1945

103
Q

What are the two stages for contributory negligence ?

A
  1. Claimant must fail to take resonable care over safety

Sayors V Harlow - fell broke ankle

Swons V Davies - out of position

  1. This failure must contribute to the harm - Froom v Butcher- seatbelt

Capps V Miller - focus on head injury - helmet

100% - Jayes V IMI knew machine was faulty but wanted job done

104
Q

What is the three stage test for Volenti ? (Complete defence )

A
  1. Knowledge of precise risk - wood ridge V sumner

Clear knowledge of risks of harm from closely supervising horse show

  1. Exercise of free choice - claimant must show they accept the risk

Smith V Baker - did not know was going to be transported under head - no imply no hard hat

  1. Voluntary Acceptant of risk - Ogwo V Taylor - accepted it through going into upstairs hatch
105
Q

What are the stages to see if occupies are liable for trespassers damage sustained ?

A

Trespasser exceeds permission -
premises

  1. Occupier must be aware that danger exists- is it obvious ?

Do not have to protect obvious risks

Ratcliff V Mcconol- occupier has to be aware - needs protection

Rhinds V Astbury - unaware of fibreglass container at bottom of pool

  1. Have to know or ought a trespasser in the vicinity - Higgs V Forster - police officer not liable as trespasser was not known

3.Risk where some protection must be offered - but not for obvious risks

Time of day or year - Donoghue V Folkstone - jumped in pool in winter and midnight - not obvious was going to happen

  1. Duty of care- children are owned same standard of care as adults as trespassers (1984) Baldacchino V West Wilterning - no duty as it was not due to premise

Do not need to spend lots of money on protection - Tomlinson V Longleton danger caused by diving not council

  1. Not state of land - keown V Convery - jumped themselves
  2. Harm is caused by state of the land - keown V convery

6 Harm is foreseeable Jolley v Sutton

7 Defences - con neg Volenti - (Titchna V british railway 🚃 )
Exclusion clause
WARING sc 2 (4) enough to keep reasonable safe - Westwood V post office

106
Q

Why was the stages in Ryland V Fletcher made?

A

Made due to environmental damages caused by escape on individuals land

Person with own purpose brings anything likely to cause mischief onto land - if it escapes it’s answerable all damages are the concequece for the escape

107
Q

What are the 4 stage test for Ryland V Fletcher

A
  1. Have something that has been brought into land - ( does not belong) - (Giles v Walker - weeds spread x )

Miles v Forrest Granite ( explosives - rocks caused damage )

  1. Have something that causes mischief
    If it escapes - could cause harm or damage if escapes - Hales V Jennings - causes - damage

Shiftman case - flagpole loss

  1. Escapes and causes damages - leaves Ds land - amotion occurs on persons land - causes damage weller V Footmouth
    More than financial loss
    Damage -cannot be foreseeable Cambridge water V eastern counties leather
    Read V Lyon
    X
  2. Result on un-natural use of land -not what you expect on domestic land - Mason V Levy - unusual sue to large quantity of tires
108
Q

What are the 5 defences for Rylands V Fletcher

A
  1. Act of God - freak weather events - outside of control - Nichol V Marsland
  2. Act of a stranger - unidentified person causing the escape - Perry V Kendrick Transport
  3. Act of third party - unauthorised act- unidentifiable person - LMS v Styrene
  4. Statutory Authority- act of Parliament allow escape - happened in careful way

Smeaton V Ilford

  1. Consent - claimant has received permission of thing accumulating in land - Peter V Price of Wales Theater
109
Q

What is private nuisance?

A

Unlawful indirect interference with another persons use or enjoyment of land in which they have interest in

110
Q

What Kind of act is nuisance?

A

A balancing act - competing claims with neighbours todo was the wish on their land

111
Q

Who can be sued within private nuisance?

A

Creators of nuisance (tetley v Chitty )
Landlords independent contractors
Occupies ( Leakey V National trust )

112
Q

Who can sue within private nuisance?

A

Hunter V Canary Wharf

owners or proprietary of if your a tenant or legal owner

Claiming who had interest with the land effected

113
Q

What is the first stage within private nuisance?

A

There has been an unreasonable use of land

114
Q

What are the five things within the First stage of private nuisance (there’s been an unreasonable use of land ? )

A

 Locality- where are you live had a bearing on the situation Laws V Florinplace

Duration - the longer the nuisance goes for the more likely it is to be seen as unreasonable

Crown cruise V Kimbolton

Malice- if nuisance occurs under bad motive, the more likely reasonable acts will be seen as unreasonable in the eye of the law - Hollywood silver fox V Emmet

Sensitivity - only allow foreseeable damage ( Network rail Vmorris)

Social benefit- Nuisance provide some wider social benefit may be found that nuisance is reasonable (Miller V Jackson )

115
Q

What is the second stage in private nuisance?

A

Is the nuisance leading to indirect interference with the enjoyment of land?

Hunter V Canary Wharf

Smoke vibrations noises effluvia fires

116
Q

What is the third stage within private nuisance?

A

This has caused damage to claimant - discomfort

Cambridge water Co v Eastern counties leather 

Swab V Costalki

117
Q

What are the advantages of the law commission?

A

Area of law research by legal experts

its nonpolitical

the law commission consults before finalising proposals

the whole area of law can be considered not just small issues

And modernise law

118
Q

What are the disadvantages of the law commission?

A

Failure of Parliament to implement reforms government is too slow to enact forms

Major area in law which needs to be reformed is then non fatal offences against the Person

Governments makes a proposal in principle but not follow them

119
Q

What are the advantages and disadvantages of the Royal commission?

A

Advantages- the Royal commission can take evidence from appropriate experts

they concentrate on one area -thorough understanding

disadvantages - the royal commission can only make recommendations and not put in affect
pearson commission- personal injury cases no change in law

in the 21st-century royal commissions has affectively been abandoned

120
Q

What are the advantages and disadvantages of reviews of the law?

A

Advantages -
judges have experience of working in law

business people have expertise likely to take a different approach in law SYSTEM

disadvantages - to take judges away from everyday role courts
are very busy to reduce a number of judges does not improve efficiency

business may not have the understanding of current law system

May not fully appreciate what will work in the legal system

121
Q

Where do we get appeals from

A

Magistrates

122
Q

What are the specific defences to private nuisance?

A

Prescription- the defendant has of the right to carry on is it because activity has been going on for 20 years or more

Claimant knew nothing activity must also have been a nuisance for the same length of time

Sturges V Bridgam - I’ve new implemented

Coventry v Lawrence

  1. Moving to the nuisance ⚠️🚨NOT A DEFENCE🚨 ⚠️- defendant may argue that claimant is only suffering the nuisance if they have moved closer to the problem

Sturges v bridgeman

Or area (Miller v Jackson)

  1. statutory Authority- It is possible that statute has authorise something to be done which means the thing is not a nuisance

Allen V gulf oil refining 1981 

Marcic V Thames Walter Plc 2003

Water industry act 1991 already provided with with remedy so no nuisance

Or local planning permission - Watson V Croft

Can only be a defence if it changes the character of the land

123
Q

How do we structure a negligence answer ?

A

Into - what negligence is
Where the law originated from
How we establish if there is an existed duty - Robinson v chief constable 👮‍♀️
Stages - duty of care , was it breeches and if there was damage sustained

2) breech of duty Reasonable man - blyth V bath waterworks alderson - negligence is the ommisson of the reasonable man

Variations of reasonable man - learners
Professional
Young people and childern

3) risk factors

4) damages

5) remedies

124
Q

How do we answer occupiers liability?

A

Intro- definition of occupies liability years say stages

Go through process

Warnings

Balance out and give outcome injunction or compensation

125
Q

How to answer vicarious liability question?

A
  1. Are they an employee- 6 stages
  2. Tort committed - close connection test and negligence
  3. Acting in and out of course of employment
126
Q

What are the advantages of the literal rule?

A

It justifies the rule

it respects the sovereignty of Parliament

and preventsUnelected judges from making law 

People know where they stand with the literal because - wording will not change therefore encourages certainly less
litigation

Lead to quicker decisions- dictionary 

127
Q

What are the disadvantages of the literal rule ?

A

Can lead to unfair or I’m just decisions in London and North Eastern railway Co. V Berriman

Words have different meaning -difficult to reply

Not always possible to have a word to cover an act in every situation



128
Q

What are the advantages of the golden rule ?

A
  1. CourtsWording makes sense of prevent an absurd repugnant wording - Resigworth
  2. Respects authority of parliament - all other circumstance to be used
129
Q

What are the negatives of the golden rule ?

A
  1. Only allows judges to change law if only repugnant or absurd outcome - limited circumstances
  2. Unsafe safety valve - no guidelines when to use golden rule is used
  3. Drifts powers from parliamentary to judicial discretion
130
Q

What are the advantages of the mischief rule ? 

A
  1. Gives to affect to true intention of parliament - judges to look beyond a little meaning concerns to remedy
  2. Allows judges to fill gaps
  3. Allows judges to interpret statutes in light of changing social circumstances are (RCN v DHSS)
  4. A more satisfactory approach than other two stated in the law commission
131
Q

What are the disadvantages of the mischief rule

A

Finding intention of parliament not easy

Language to confusion as judges may not know the meaning of words

Judges too much power through filling in words

132
Q

What are the advantages of the purposive approach?

A

gives True intention of Parliament

Allows judges to fill gaps - (Mayors and St Melons V Newports ) Use of common sense

Allows judges to interpret law in the light of changing social economical and technological circumstances

( R(Q) V Home of SS )

Allows the use of Hansard - (Pepper V Hart)

133
Q

What are the disadvantages of the puporsive

A

Use of Hansard it’s not easy due to it being limited under circumstances

Can lead to confusion- inconsistent judgement make by judges

Judges can overstep their role

Too much power given to judges- Goes against Parliamentary sovereignty 

134
Q

What are the advantages of intrinsic (internal )aids

A

Punctuation helps guide judges with meanings

Definition sections help guide the judges toward what words actually mean- the theft act s4 . Defines property

Schedules are good because it allows us to get a more detailed scope of the act- Hunting act 2004 

Long title ✅ mischief approach

135
Q

What are the disadvantages of internal aids ? 

A

Long and short titles have limited years

Judges do not find meanings within the act itself

136
Q

What are the advantages of extrinsic aids?

A

Dictionaries- useful for the literal interpretation of words

Interpretations sections acts ✅ with common words and phrases

Previous acts ✅ - mischief rule preventing

Law commission ✅ - tells us what was wrong with law previously
(R v Shripuri )

137
Q

What are the negatives of extrinsic aids

A

Dictionaries are not good for literal definitions when there’s more than one meaning

Interpretation acts are limited- more if technical

Hansard - waste of time - establish what Parliament was trying to say


A-level Law 👩🏿‍⚖️ (15 decks)

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