Sources of Law Flashcards
3 major sources of law
statute, common, european
examples of statute law
acts, regs, orders
facts about common law
judicial precedent, judge made, only changed by higher court
types of european law
directives = general objectives / standards
regs - must be followed in entirety
facts about criminal law
statute, punish non-compliance standard set by the state protection / prevention imprisonment / fines made by parliament
facts about civil law
judicial precedent sets the standard
can also be statute
injunctions, orders, compensation
rules of behaviour
burden of proof - criminal
beyond all reasonable doubt
burden of proof - civil
balance of probability
standards of duty
absolute practicable reasonably practicable BATNEEC - best available technology not exceeding economic cost best practical means
Case ref absolute duty
Summers v Frost 1955
Hand in contact with grinding wheel that should have been completely guarded
Absolute duty - guarding to afford complete protection to careless or inattentive worker
Ruled that there had been a breach of statutory duty
Case ref practicable duty
Marshall v Gotham 1954
Mine roof collapsed, previously tested but not propped. Collapse due to unforeseen geological fault not known about.
Risk of roof collapse not reasonably foreseeable
Employer not liable because had taken reasonable steps to secure roof
Case ref reasonably practicable duty
Edwards v National Coal Board 1949
Miner killed when road subsided, no timber supports
Other sections supported
NCB liable as cost to install supports was not prohibitive compared to the risk
Criminal courts
Magistrate, Crown
Cases brought by Crown Prosecution Service
H&S framework in UK
HSWA 1974
Regs
ACOPs
Guidance
Details ref ACOPs
Not law
special legal status
failure to follow can secure conviction
Definition of tort
violation of a right or duty, e.g. negligence
Civil courts
County, High
3 Civil court remedies
Orders, injunctions, compensation
doctrine of precedence (civil / common law)
lower court follows higher court rulings
ensures consistency
continually revised
disadvantages of doctrine of precedence
case outcomes uncertain
no law if case can be shown to be different
court not bound by previous judgments
what is delegated legislation
Govt can issue additional requirements
Can be challenged ref validity (unlike Acts of Parliament)
How can delegated legislation be challenged
ultra vires - beyond powers
against some aspect of common law
What is negligence
failure to comply with a duty of care (careless conduct)
How is a negligence case established
duty of care owed
duty breached through negligence
breach resulted in damage
res ipsa loquitor - the facts speak for themselves
Negligence defences
deny liability
no duty owed
no breach of duty (foreseeable, reasonable)
Contributory negligence (not 100% defence)
No fault
Volenti non fit injuria - claimant agreed to run risk of accidental harm
Ex turpi causa non oritur actio - not based on illegal or immoral act
Out of time - 3 years from date noticed injury
Statutory duty breach tests
Defendant obligated Claimant designed to be protected by statute Injury was type contemplated by statute Defendant in breach of duty Breach caused injury
Statutory duty defences
Not within statute Civil action not permitted Defendant not obligated by statute Duty not owed Injury not contemplated by statute (e.g. Ionising Radiation Regs apply to pregnant women) Not in breach of duty Breach did not cause injury
HSWA Section 47 - breach of sections 2 to 8 proven, then cannot sue for negligence
What is vicarious liability?
One person held liable for another’s torts
Employer not usually liable for acts independent contractors
Vicarious liability case - negligence of employees
Lister v Romford Ice Cold Storage 1957
Father run over by son driving truck
Employee breached duty implied in employment contract to take due care
Vicarious liability case - negligence of contractors
McArdle v Andmac Roofing 1967
subcontractor hired to repair roof
employee fell through gap
Main contractor had duty to supervise and ensure gaps not left
Vicarious liability case - joint liability
Driver v Willett (Contractors) 1969
Claimant injured when hoist used unsafely
Sued safety consultants who failed to advise ref lifting equipment
Vicarious liability case - independent contractors
Austin Rover v Inspector of Factories 1989
paint sump cleaned by contractors using own thinners
employee killed by flash fire
had used Austin Rover thinners, pipes interfered with, safety lamp not used
Vicarious liability tests
Contract of service (employee)
Contract for service (contractor)
‘told what to do and how to do it’
Example of absolute duty
HSWA section 2(3) - requirement for H&S policy statement
PUWER - requirements for inspection & testing, guarding
LOLER - statutory inspection
What did the Enterprise & Regulatory Reform Act 2013 do?
Amended HSWA so that no civil right of action for breach of duty for certain H&S regs, other than where specific right specially provided for.
i.e. only where legislation includes specific exemption, e.g. pregnant worker cannot be forced to work in compulsory maternity period (2 weeks from due date)
