AS Law, Unit 2

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  • Created on: 28-04-13 21:13

Civil Law


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Duty of Care

  • A duty of care is a legal responsibility not to cause damage by our acts or omissions
  • Modern law was established in the case of Donoghue v Stevenson
  • In this case, Lord Atkin established the 'Neighbour Principle'
  • He said 'you must take reasonable care to avoid acts and omissions which you can reasonably forsee would be likely to injure your neighbour'
  • He then defined 'neighbour' as 'persons who are closely and directly affected by our act(s)'
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Breach of Duty

  • A breach of duty may follow if reasonable care is not taken
  • The 'Reasonable Man Test' (established in Blyth v Birmingham) is used to determine whether there has been a breach of duty by asking the question; 'Did the defendant act in a way that another reasonable, compitent person would have?'
  • If the answer is no, then the defendant is liable for a breach
  • There are two exceptions to the Reasonable Man Test;
  • The first exception is the 'Bolam Test' (established in Bolam v Friern Hospital) which is the test for trained and skilled individuals, this test requires a higher standard of care from the defendant.
  • The second exception is for children or mental and physical capacity and is illustrated in Mullins v Richards (ruler in eye). This test requires a lower standard of care from the defendant
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The Caparo Three Stage Test

  • established in the case of Caparo v Dickman
  • Stage 1 is 'Reasonably Forseeable' as illustrated in Kent v Griffiths (late ambulance)
  • Stage 2 is 'Proximate' as illustrated in Bourhill v Young (motorbike accident, pregnant woman)
  • Stage 3 is 'Fair, Just and Reasonable' as illustrated in Mulcahy v The MOD (accidental fire of a Howitzer cannon)  
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The Four Risk Factors

  • 1) 'Liklihood of harm' as illustrated in Bolton v Stone (cricket ball)
  • 2) 'Seriousness of harm' as illustrated in Paris v Stepney (one eyed welder)
  • 3) 'Potential benifit' as illustrated in Watt v Hertfordshire County Council (ambulance jack)
  • 4) 'Cost and practicallity' as illustrated in Latimer v AEC
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Res Ipsa Loquitur

  • Literally translates to 'the thing its self speaks' and can be interpreted as 'the facts speak for themselves'
  • In a Res Ipsa Loquitur case, the burden of proof is shifted from the claimant to the defendant
  • Illustrated in the case of Scott v St Catherines Dock
  • Three requirements for proof:
  • 1) There must be no other explaination for the damage 2) The damage must have been caused in an unusual situation or a situation that does not normally occur 3) The defendant must have had full control in the situation
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Damage: Causation

  • The test for Causation is the 'But For Test' as illustrated in Barnett v Chelsea and Kensington Hospital
  • There are two exceptions to the test which are; 
  • 1) The first exception is 'Multiple Events' as illustrated in Wilshere v Essex Area Health Authority
  • The second Exception is 'Successive Events' as illustrated in Baker v Willoughby
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Damage: Remoteness

  • The test for Remoteness is the test of 'Reasonable Forseeability' which is illustrated in The Wagon Mound case
  • There are two exceptions to the rule;
  • The first exception is if 'the damage was forseeable, but not as it happened' as illustrated in Hughes v Lord Advocate (gas lamps)
  • The second exception is the Thin Skull rule or 'take your victims as you find them' and is illustrated in Smith v Leech Brain Co. (burnt lip)
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  • Damages are dealt with in a three track system which consists of;
  • 1) The Small Claims track, which deals with claims of up to £5,000 or Personal Injury claims of up to £1,000
  • 2) The Fast track, which deals with claims between £5,001 and £25,000 or Personal Injury claims between £1,001 and £25,000
  • 3) The Multi tack (county court) which deals with claims between £25,001 and £50,000. Any claims over £50,000 are dealt with in the Multi track (High Court, Queens Bench Division)
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Calculating Damages

  • Damages are separated into two catagories;
  • 1) Special Damages which consist of any financial (pecuniary) which the claimant incurred before the trial, i.e loss of earnings, medical expenses or costs of travel etc.
  • 2) General Damages which consist of anything tha the claimant may lose in the future (non-pecuniary), i.e loss of potential earnings, compensation for pain and suffering and loss of amienity
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Criminal Law

Criminal Liability

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Actus Reus

  • the actus reus is the physical element of a crime or the 'guilty act'
  • this can be an act or a failure to act (an omission)
  • Usually, omissions cannot find someone guilty of an offence, however, there are some exceptions (duty to act situations);
  • A contractual duty, as illustrated in R v Pittwood
  • A special relationship, as illustrated in R v Gibbins and Proctor
  • An official position, as illustrated in R v Dytham
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  • The consequence must be proven and it must be shown that;
  • The defendants actons were the factual cause
  • The defendants actions were, in law, the cause of the consequence
  • There was no intervening act which broke the chain of causation
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Factual Causation

  • The 'But For Test' is used to determine Factual Causation and the defendant can only be guilty if the consequence would not have happened 'But For' the conduct of the defendant (R v Pagett)
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Legal Causation

  • Once the factual causes have been established, the prosecution must also prove the legal causation, this is the 'Operating and Substantial Cause' test to find the link between the act and the consequence (Chain of Causation)
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The Chain of Causation

  • The chain of causation must connect the at of the defendant and the prohibbited outcome, some potential breaks in the chain are;
  • The Thin Skull Rule, as illustrated in R v Blau
  • Medical Negligence, as illustrated in R v Cheshire
  • Self Neglect By The Victim, as illustrated in R v Dear
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Mens Rea

  • The mens rea is the mental element of a crime, or the 'guilty mind'
  • There is a general principle in criminal law which states that 'there shall be no liability without fault'
  • Therefore, the intent of the defendant must be proven;
  • Direct intent is the hardest to prove and is illustrated in the case of R v Mohan
  • Indirect intent is measured by the test of 'virtual certainty' and is illustrated in the case of R v Woolin
  • A crime may also be a result of the defendants recklessness or risk taking, meaning that the defendant was aware of the risk but continued anyway, as illustrated in R v Cunningham
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Strict Liability

  • With strict liability, only the actus reus must be proven (no fault offenses) and some examples of strict liability offences are;
  • Pollution (Harrow v Shah)
  • Food (Smedley v Breed)
  • Broadcasting (Blake)
  • Outraging public decency (Gibson)
  • Minor motoring offences etc
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Advantages of Strict Liability

  • Prevents congestion in the courts
  • No criminal record
  • Acts as a deterrant
  • Time saving
  • Cheaper
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Continuing Acts

  • With a continuing act, the mens rea and actus reus do not conicide so the entire incident is treated as a continuing actus reus, as illustrated in Fagan or Thabo Meli
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Transferred Malice

  • aka transferred intention or transferred mens rea, as ilustrated in Latimer or Mitchel
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  • The actus reus of assault is 'causing the victim to apprehend immediate unlawful force'
  • The mens rea of assault is 'intention or subjective recklessness as to the apprehension of immediate unlawful force'
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  • The actus reus of battery is 'the application of unlawful force'
  • the mens rea of battery is 'intentions or subjective reckelssness as to the application of unlawful force'
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  • ABH is an injury that is more than trivial or insignifficant (Chan-Fook)
  • The actus reus of S47 ABH is 'assault or battery occasioning in ABH'
  • The mens rea of S47 ABH is 'intention or subjective recklessness as to the application of unlawful force' (Savage/Roberts)
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  • GBH refers to any bodily harm that is serious (Saunders)
  • The actus reus of S20 GBH is 'to wound or inflict serious harm'
  • The mens rea of S20 GBH 'intention or subjecktive recklesness as to some harm'
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  • GBH refers to any bodily harm that is serious (Saunders)
  • The actus reus of S18 GBH is 'to wound or cause serious harm'
  • The mens rea of S18 GBH is 'intention to cause serious harm'
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Maximum sentences;

  • Assault - 6 months
  • Battery - 6 months
  • S47 ABH - 5 years
  • S20 GBH - 5 years
  • S18 GBH - life
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Aggravating Factors

  • Aggravating factors contribute to the length of a sentence and may include such factors as;
  • Premeditation
  • Discrimination
  • Group Action
  • Prejustice
  • Repetition
  • Use of a weapon
  • Previous convictions of the defendant
  • Defendant is on bail
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Mitigating Factors

  • Mitigating factors may decrease a sentence and may include such factors as;
  • Mementary impulse
  • Provocation
  • Little harm done
  • genuine understanding
  • voluntary compensation
  • cooperation with the police
  • previous clean record
  • Defendant is a child or elderly
  • Positive, good character
  • Poor health
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Range (Types) of Sentence

Custodial sentences;

  • Immediate custodial (sentence begins immediatley after the trial)
  • Suspended custodial (sentence is suspended and will be taken into action if the defendant reoffends)

Community sentences;

  • Unpaid work (40 - 240 hours)
  • Probation oder
  • Curfew order
  • Treatment programme (drug, alcohol, violence etc)

Financial sentences;

  • Fines (state)
  • Compensation (victim)
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  • Conditional discharge (the defendant is discharged with conditions, i.e. must report to police station each night)
  • Absolute discharge (the defendant is discharged with only a criminal record)
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Aims of Sentencing

  • Retribution - the principle of 'just deserts', the defendant gets what they deserve.
  • Individual deterrance - to deter the defendant from reoffending
  • General deterrance - to deter others from offending
  • Rehabilitation - to reform the offender
  • Protection of society - i.e custodial sentence
  • Reperation - the defendant tried to put right some of the damage (voluntary scheme)
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