Section B: The Law Of Tort 😈 Flashcards
What is the literal rule?
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
Cases use the literal Rule?
Whiteley v. Chapple
What was the case of Whiteley v Chappel ?
What did this manifest
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
What was another case that used the literal rule?
Fisher v Bell
What was the case of Fisher v Bell And how did it use the literal rule ?
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

What is the case where it was unfair due to the literal rule?
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
What is the Golden Rule?
It’s a modification to the literal rule
Used when the literal rule leads absurdity
Used to qualify a literal rule
What are the two types of the Golden Rule ?
The narrow application
Wider application
What is narrow application?
if a word is ambiguous the judge Can choose between possible meanings To avoid an absurd outcome
What is wider application?
When there is only meaning of the word but it would lead to an absurd or repugnant situation
Give an example of a case that used the narrow application?
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
Give an example of a case that use the wider application?
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
What is the mischief rule ?
Looks at the purpose of the law
What are the four factors when using the mischief rule?
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

What case needed the Mischief rule? 
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
What is a case that shows the limitations of the use of the mischief rule? 3)
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
What is the purposive approach?
Court decides what Parliament was trying to achieve when passing the legislation
What is the purposive approach Influenced by?
The European approach to statutory interpretation
What does the purposive approach look to?
Social propose of legislation rather than focusing on the
evil act that might have been created to deal with
How did Lord Denning establish a more purposive approach ?
Giving greater credence (power) to the spirit of law rather than the letter of law 
What does the purposive approach seek to give?
To give affect of the true purpose of legislation
What did the Pepper V Hart case ensure that judges would have? 
reference to materials
to find the intention of parliament
that has resulted to them referring to Hansard
Has Parliament contributed to the purposive approach?
Producing modern legislation
the fraud act 2006 illustrates examples of fraud 
Give us a case example of the purposive approach?
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 
What is in Internal aids of interpretation ?
The aid needed approach a statutory interpretation can be found within the statute itself
What are the fives things in internal aid of interpretation?
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
What do older acts in the internal aids of interpretation have?
preamble- outlining what the statute covers and it’s purpose
What do modern acts now have?
Interpretation sections
What is Hansard ?
When everything said in parliament my MPs is recorded
What is external aids of interpretation?
When mischief rule directed them to it
What are the 5 ways we can use external interpretation?
Denning quote ?
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)
What is persuasive precedent?
Any decision or judgement that doesn’t need to be followed
Give an example of persuasive precedent?
obiter dicta
R v Wilson - GBH - dropped - had consented
R v brown - consent- would have been legal if it was tattooing
DPP v smith
What are the reasons of lower Court Not binding to but can be persuasive ?- Example ?
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 
What are the three things we need to talk about when talking about persuasive precedent?
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 
How does dissenting judgement influence persuasive precedent?
Examples
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
How does the privy council influence persuasive precedent?
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 
What was the orbiter dicta Of DPP V Smith?
Paint or are the chemicals in the hair would’ve been ABH
What is the use of obiter dicta?
It’s used to speculate and persuade
How do we avoid a precedent?
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
What is the case of R V G+R?
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 ?
What are the three factors that the Court of Appeal can use the overall their previous precedent? 
1- Supreme Court have already overboard their own precedent
2- If there are two conflicting court appeals you can choose one
3- per incuraim

Why can the criminal division of Court of Appeal overrule their own law? Example?
Someone’s liberty is at stake overall a previous if the Lord misapplied or misunderstood
R v Gould
What is reversing?
Example
When you change your decision of A lower court in a current case
Gillick v wite beck health 
What is strict liability?
when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action
Give an example of strict liability?
Rylands v Fletcher
What acts have had statutory intervention?
Occupiers’ liability act of 1957 and 1984
What is public policy ? Eg
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
What is justice ?
Laws tries to create fairness and can be used to elevate the legal rules and theory
Why is justice important?
Important at when the defendant owned the claimant a duty of care
What is the human rights act 1998?
Set out fundamental rights and freedom TAHT everyone in the uk is entitled to
What is Common law ?
The body of law - based on court decisions rather that codes or statutes
What is fault based liability
A type of liability predicted on some sort of wrong doing
What are the four institutions of the EU?
The European commission
Council of EU
European Parliament
European Court of Justice
What is the European commission? example?
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
What is the Guardian role?
When the European commission can bring any case against any state follow or implement EU law
What are councils of EU?
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
What is European Parliament?
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
What is the European Court of Justice?
Examples ?
Article ?
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
What are the four main types of EU law?
The treaties
regulations
directives
decision
