Law: Unit 4

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Duty of Care

  • What one person owes to another. Donoghue v Stevenson: Neighbour principle - You must take reasonable care to avoid acts or omissions which you can reasonably foresee would injury your neighbour.
  • Caparo Test: Foreseeability, proximity of relationship, fair, just and reasonable.
  • Kent v Griffiths: Claimant had asthma attack. Ambulance was only 6 miles away but took 40 minutes to arrive and woman suffered further breathing problems. Was foreseeable that this negligence would cause further injury.
  • Bourhill v Young: Claimant saw motorcycle crash, she went into premature labour and lost her baby, the claim failed because there was no proximity as she went to the scene.
  • Hill v Chief Constable of West Yorkshire: Claimant was mother of Peter Sutcliffe victims. The police didn't owe a duty of care because if they did then they would need to owe a duty to all victims and there are public policy reasons why this should not be the case. It was not fair, just or reasonable.
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Breach of Duty

  • Negligence is doing what a reasonable person wouldn't do or failing to do what a reasonable person would do. Blyth v Birmingham: Waterpipe burst due to extreme cold weather and flooded a house, it wasn't reasonable to take precautions against something that was unlikely.
  • Breach of duty occurs when an act or omission falls below the standard of care.
  • Reasonableness is assessed according to risk factors surrounding the incident:
  • Nettleship v Weston: A learner driver crashes their car during a driving lesson, they were held to the standard of a competent driver.
  • Mullins v Richards: Two girls played with rulers and snapped into one of their eyes - they were only 15, so they were held at the standard of a reasonable teenager.
  • Bollam: Claimant had ECT without a muscle relaxant, no breach because this was accepted by a responsible body of medical professionals.
  • Bolton v Stone: Cricket ball went over fence, no breach as this was very unlikely to hit someone - small probability.
  • Paris v Stepney Borough Council: Man already lost an eye and lost his second in a welding accident. Breach as his vulnerability meant more care should have been taken.
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  • Bolitho: A doctor's pager died and this led to the death of a child. It applies that other practitioners would have adopted the method employed by the defendant, it must be demonstrated that the method was based on logic and was defensible.
  • Watt v Hertfordshire: Fire services used a heavy lorry jack to free woman, they had to hold onto it and it injured a man's leg. No breach as this was an emergency.
  • Latimer v AEC: In an attempt to dry a soaked factory floor, sawdust was used, but a man still slipped and was injured - no breach as there were enough precautions.
  • Roe v Minsister of Health: Anaesthetic mixed with sterilisng fluid and permanently paralysed a man - no breach as they didn't realise that this could happen.
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Res Ipsa Loquitur

  • "The thing that speaks for itself".
  • If it is accepted the burden of proof shifts from the claimant to prove liability to the defendent to prove they weren't liable on the balance of probabilities.
  • This applies if: the thing that caused damage was under the D's control at the time, it must have been the result of negligence and there must be no other explanation.
  • Scott v London & St. Katherine's Dock: Plantiff was injured by being hit by a bag of sugar. It is sufficient for the plaintiff to prove that the defendant was in control of the situation (which had caused the injury), the accident would not normally have occurred without carelessness and the cause of the accident is unknown.
  • Or if what happened wouldn't normally have happened unless negligence occured.
  • Mahon v Osborne: A swab was left inside a patient after an operation.
  • Ratcliff v Plymouth: A claimant had been given aspinal injection to relieve pain but it led to neurological problems. Neither side was able to prove what exactly happened, so the claim was unsuccessful.
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Causation of Damage

  • But for defendents breach of duty the damage would not have occured.
  • Barnett v Chelsea and Kensington: But for them failing to examine him he would still have died due to arsenic poisoning, therefore there was no causation of the damage.
  • Mc Williams v Arrol: Scaffolder didn't supply harness - wouldn't have worn it anyway so breach in causation didn't cause damage.
  • Faichild v Glenhaven: Man worked for numerous employers - had been using asbestos throughout his working life - one of these exposures led to mesothelioma lung disease which killed him - claimant could due because court used but for test to allow him to sue any employer who had materially contributed to the risk.
  • Legal causation in negligence - damage has to be reasonably forseseeable.
  • Wagon Mound No.1: Due to negligence oil spilled into harbour and welding sparked a large fire which polluted the harbour - extent wasn't foreseeable. It was too remote. 
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What is foreseeable?

  • Type of harm - Bradford v Robinson Rentals: Injury caused by cold was foreseeable, frostbite accpeted as type of harm caused by the cold - therefore it was foreseeable.
  • Method of harm doesn't have to be foreseeable - Hughes v Lord Advocate: Although explosion wasn't foreseeable, the burns were, so the type of harm was, this they were liable for the full extent of harm.
  • Defdendent will be liable for full extent of harm, if the type of harm is foreseeable - Vacwell Engineering v BDH: Defendent negligently supplied a chemical without a warning that it would explode if it came into contact with water. Claimant put it into sink which caused extensive damage to the premises - the defendent was liable for the full exxtent of damage.
  • "Thin Skull Rule" - Smith v Leech Brain: Man splashed on lip with molten metal and developed cancer because of a pre-existing condition - take your victim as you find them.
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  • Intervening causes can free the defendent from liability if they break the chain of causation.
  • Carslogie: Negligence kept ship in harbour - it then hit a storm and was further damaged - the defendent was liable for storm damage.
  • Lamb v Camden LBC: Council's negligence led to claimants house being flooded - squatters moved in. The defendent wasn't liable for the damage the squatters had caused.
  • Knightley v Johns: Defendent caused a road accident in tunnel - police motorcyclist was sent into the tunnel into incoming traffic and was injured - the police negligence broke the chain of causation.
  • Scott v Shepherd: Defendent threw firecracker into market - it was thrown ob by two further people, the defendent was still liable for the injuries of the claimant.
  • McKew v Holland: Defendent injured claimants leg in such a way it was liable to give way without notice - claimant fell downstairs, didn't hold onto handrail, defendent not liable for claimant being unreasonable.
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Medical Negligence

  • The three key points from Bolam and Bolitho:
  • 1) Bolam states that if a doctor acts in accordance with a practise or opinion which is accepted as proper by a 'responsible body of doctors', it is unlikely that the court will find him negligent.
  • 2) Bolam further states that a doctor will be held not negligent if they act in accordance with an approved practise even if other doctors take a contary view.
  • 3) Bolitho: Adds the court will hold that a doctor is negligent who has acted in accordance with a generally approved medical opinion/practise, but where it doesn't have a 'logical basis'. In particular, the court must be satisfied that the doctor in question has considered any risks involved in the practise and has arrived at a reasonable decision.
  • Causation is often an issue in medical cases:
  • Wilsher: Baby suffered blindness at birth due to six possible causes, only one related to negligence. House of Lords sent the case for retrial - normal 'balance of probabilities' test should apply.
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  • Hotson: Hospital missed hip injury for 5 days, evidence said there was a 75% chance injury would have occured even if properly diagnosed. House of Lords rejected this claim as on balance of probabilities unlikely to be able to show that the negligence caused damage.
  • Gregg v Scott: Claimant's cancer went undected for 9 months - claimant's chances of survival after 10 years fell from 42% to 25% but House of Lords refused loss of chance claim.
  • Failure to warn: Chester v Afshar: Defendent operated on claimants spine but failed to warn her of a 1-2% chance of paralysis - House of Lords allowed claim on the policy basis that if they didn't a doctors duty to warn their patients would be pointless.
  • Defences: Contributory negligence: Introduced under the Law Reform, must show claimant's behaviour was below the standard of a reasonable person.
  • mounts of damages payable can be split between different possible defendents in percentage amounts:Brannan v Airtours: Holiday maker was injured by a ceiling fan and had to climb over tables the defendent put out, claimant was partly responsible for his injuries. 50% reduction.
  • Froom v Butcher: Not wearing a seat belt which means that damages will be reduced 15-25%.
  • O'Connell v Jackson: Not wearing a crash helmet on motorbike.
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  • This is a defence when the claimant knows the defendent may act negligently but accepts the risk freely.
  • Morris v Murray: Claimant and defendent were drinking, then claimant allowed the defendent to take him for a flight in a plane, the claim failed after the plane crashed.
  • Smith v Baker: Railway worker was injured by material falling from a crane - defendent claimed the employee consented but this was rejected by the court.
  • Haynes v Harwood: Defendent's negligence allowed horse to escape into a busy street - claimant injured trying to stop the horse, defendent claimed claimant consented to possible injury, rejected as claimant felt obliged to help.
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Pure Economic Loss

  • Pure Economic Loss means loss of future earnings.
  • The courts are not keen to allow for pure economic loss , as they regard any such claims should be brought using the law of contract. If there is no contract between the claimant and the defendent and if the loss is purely economic, that is to say it doesn't result from damage to the claimant or his property, then the loss cannot be recovered.
  • You cannot claim for purely financial loss that doesn't come from some 'damage' physical or in nervous shock cases you can claim for the loss of earnings.
  • Weller v Foot and Mouth Disease Research: Due to negligence, a virus escaped from defendents premises and affected cattle rendering them unsaleable. Claimant brought an action for loss of profit he would have made had the cattle not been so affected. It was decided that the could sue for loss of commission but not loss of future profit as it couldn't be shown how much profit they would have made.
  • Spartan Steel & Alloys v Martin & Co: Power outage in a factory making steel - some workers were digging in the road and they cut the power cable. They were successful in sueing for the steel that had been damaged and the loss of profit however, couldn't sue for profit that could have been made.
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Negligent Mis-Statements

  • If defendent makes a statement to someone to whom she/he owes a duty of care and if it is inaccurate and if it causes loss she/he will be liable.
  • Hedley Byrne v Heller and Partners: Firm wanted to know if they should credit Easipower and Heller said it would be appropriate. Easipower then went out of business. They sued, but Heller had duty of care "assumption of responsibility".
  • "Special Relationship" - Skill expertise of defendent in Chaudhry.
  • Voluntary assumption of responsibility in Hedley v Byrne.
  • Known user and purpose - Caparo (It was stated that they had made a pre-tax profit of £1.3 million, but had made a loss of over 400,000, wrong accounts.
  • Reasonable reliance - Smith v Bush (A survey report of the claimant’s house carried out by the defendant failed to advise on some structural damage to the property which resulted in the chimney breast collapsing).
  • Has claimant relied on the statement and incurred loss? Is there a breach? Have they fallen bellow the standard of a reasonable adviser? Contributory negligence? Is there consent? Is there a letter disclaiming liability? Remedy - damages for loss.
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Product Liability

  • Consumer Protection Act 1987: They have to have suffered personal injury while using an unsafe product. It is a tort of strict liability. This means that no fault has to be proved. The user of the product is the one who can sue. The producer can be sued. The producer is the manufacturer, importer or retailer. The claimant has to show that they were injured as a result of using the product. Defective goods are the safety of the product is not such as persons generally are entitled to expect.A relevant case is Abouzaid v Mothercare where a 12 year old boy was helping his mother to strap a sleeping bag to his brother’s pushchair when the elastic straps slipped and lashed back, hitting him in the eye and causing permanent damage. The claimant tried to sure Mothercare but the court decided that they weren’t negligent because Mothercare wouldn’t have known about the problem. The claimant then tried to sure for CPA liability and did succeed because they were liable because they sold a defective product.Another case is Bogle v McDonalds where a young child was injured when he spilt a hot drink served by McDonalds. He sued using the CPA, and it was held that McDonalds had no duty of care to inform their customers that the drink was hot because reasonable customers would know that.A possible defence for the producer is to show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control. You could claim damage for the personal injury suffered but couldn’t claim for the purchase of a new product.
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Consumer Protection Act

  • Claimant s2(1): A person may claim if he suffers damage which is caused wholly or partly by a defect in a product. The claim can sue if there is a defect in a product that causes him or her damages.
  • Product s1(2): Any goods - any componet goods or raw materials: Bogle v McDonalds - A young child was injured when he split a hot drink served by McDonalds. Held that they had no doty of care to inform their customers that the drink was hot -reasonable customers know.
  • Abouzaid v Mothercare, A v National Blood Authority 2001 (The Claimants sought damages after being infected with Hepatitis C from blood and blood products through blood transfusions).
  • Defect s3: There is a defect in a product if the safety of the product isn't such as person's generally are entitled to expect in the circumstances. Richardson v LRC - Condom was torn open and the claimant became pregnant and sued the company. They failed.
  • Defining the defect is a key element. Courts take account of: manner in which and purposes for which it is marketed, packaging, use of kitemarks, instructions/warnings, what can be expected to be done with the product, time when it is supplied.
  • It is up to the claimant to prove that it was defective.
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Consumer Protection Act - Defences

  • 1.) Contributory Negligence. 2). Under s4 the development risks defence if the D can show the state of scientific and technical knowledge at the tme of the supply of the product, was not advanced enough to allow a producer to discover the defect - European Commission v UK 1997. 3). Compliance with the law. 4). Non-supply of the product. 5). Any supply was non-commercial. 6). Defect didn't exist when put into circulation. 7). Subsequent product - If a product is put into a larger product and it is the larger product that is defective then they will have a defence, provided that this is becuase of the larger product design or because D followed the instructions of the manufacturer of the larger product.
  • Damage and Remedies: s5 - Claimant can sue if suffers: death or personal injury; damage to property including land.
  • Can not claim: Damage to property worth less than £275; damage to the defective item itself or any item supplied wth it; damage to anything being used for business use.
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Occupier's Liability

  • The purpose: Creation of a general duty towards those who onto land/premises.
  • Law set out in two acts: OLA 1957(lawful visitors) and OLA 1984 (trespassers).
  • Occupier: Any person who controls the premises, or the relevant part of premises. Likely this will include the owner but could also be a contractor, stall holder or tenant.
  • Premises: Includes land and buildings. s1(3)(a) OLA 1957: Includes any fixed or moveable structure on the land e.g. shed, bridge, aircraft, boat, vechile.
  • Visitor: Someone who had permission to enter - expressed or implied.
  • Someone who makes repeated visits. Permission implied: Lowery v Walker - Claimant was injured by a horse. The D was liable as people had repeatedly trespassed on the land.
  • Child trespassers will not be trespassers but will be lawful visitors if there is an allurement that is something that is both dangerous and attractive to children - Jolley v Sutton: Two 14 yr old boys decided to do up a boat on the defendent's land. It fell on one of the boys causing severe spinal injuries. It was appealed that children would meddle with the boat at the risk of some physical injury - the injury fell in that description.
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Duty Owed Visitors/Trespassers

  • Trespasser: Someone who enters without an invitation and whose presence is unknown to the occupier or is objected to by a sign or a lock.
  • Visitors may have permission to enter some areas but not others. Students may be trespassers in a college staff room if they enter univited. Pearson v Coleman - Child was mauled by lion at the circus, it was foreseeable that there would be no warnings, and for this purpose she was an invitee, so the circus was liable for the personal injury.
  • A visitor who outstays his invitation - a child in a school after hours.
  • A person who exceeds the purpose of the invitation. When you invite someone into your house to use the staircase, you don't invite them to slide down your bannisters. The Calgarth.
  • Visitor is owed a duty under Act s2(2).
  • Discharging the duty: s2(4)(a) - An occupier may be able to discharge his duty by providing reasonable warnings: Woolins v British Celanese.
  • s2(3)(a): An occupier can't discharge his duty to a child by saying the warnings should have been good enough for an adult - an occupier can expect a child to be less careful than an adult but can expect young children to be in care of their parents - Rochester v Phipps - 5 year old was injured when he fell into a trench. Not liable as he should have been with parents.
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Duty Owed Occupiers/Trespassers

  • s2(3)(6): An occupier can expect a specialist visitor to be aware of any risks associated with his job/specialism and to take steps to protect himself accordingly.
  • Causation and remoteness of damage are relevant as in ordinary negligence.
  • In case of business premises s2(1) - a business can't exclude liability for death or personal injury if caused by negligence.
  • s2(2) Liability for other types of loss can only be excluded if reasonable.
  • OLA 57 Defences: s2(4)(b) - An occupier won't be liable for faulty workmanship by an independent contractor - but they should have taken reasonable steps to ensure that it was necessary and that they were competent and had done the job properly - Haseldine v Daw: Claimant fell down a faulty lift, the technical nature of this meant that the occupiers couldn't be expected to verify, so they were not liable.
  • If the occupier could examine the work themselves they may still be liable - Woodward v Mayor of Hastings: School hired cleaners to defrost a staircase, the claimant was badly was badly injured because they slipped. This was something they could have checked for themselves, to check that the work was reasonable, so they were liable for the injuries.
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OLA 57 Defences

  • s2(3): The occupier may claim that the visitor's own acts or omissions partly caused the injury - falling below the standard of reasonable visitor - there may also be contributory negligence in respect of injury if the actions of the claimant didn't cause the injury, but made it worse e.g. not wearing a seatbelt.
  • s2(5): The occupier can show that the visitor consented to the risk of negligence by the occupier putting up a sign may exclude liability but...businesses cannot exclude liability for death or personal injury - Unfair Contract Terms Act 1997 s2(1); other losses can only be excluded if its reasonable to do so s2(2); and UCTA 1977 allows businesses to exclude liability for recreational and educational visits if they are outside the nature of the occupier's business s1(3)(b).
  • Remedies: s1(3) - OLA 1957: The successful claimant can claim damages for death and personal injury and for loss/damage to property (including someone else's property) and any consequential economic loss resulting from damage to property such as the cost of recovery (paying to have your damaged property removed and restored for you).
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OLA 1984

  • Trespasser: Someone who doesn't have permission to enter or who exceeds their limit as a visitor - The Calgarth (Don't slide down bannisters).
  • OLA s1(3)-1(4): The duty is to take such care as is reasonable in all circumstances of the case to see that the other doesn't suffer injury on the premises by reason of danger on the land.
  • The three hurdles to owing a duty of care: 1). Aware of the danger of has reasonable grounds to believe that it exists (Ratcliff v McConnell - Students jumped into a pool after it had been locked, one broke his neck. They tried to get compensation, but the defendents proved that they had taken greater steps to reduce trespassers and their appeal won). 2). Aware that or has reasonable grounds to believe that someone will come into the vicinity of the danger (Donoghue v Folkestone - Man dived from a slipway at a harbour and broke his neck. He was a professional scuba diver and should have known better, the D had no reason to think anyone would be swimming at the time). 3). Is it something you would reasonably be expected to offer protection against? (Tomilinson v Congleton - Claimant jumped into a lake in a park and broke his neck. The risk arose from his own actions, the risk wasn't one which the defendents would have to protect people from).
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Occupier's Defences

  • You can discharge the duty by putting up signs or warnings as in s1(5).
  • Defences: Consent s1(6): This is a complete defence, if its show that the D agreed to run the risk of injury. Ratcliff - No duty of care is owed in respect of risks willingly accepted by the trespasser.
  • Warnings: In most cases a warning (oral or written) will be enough to completely discharge the occupier from his duty, but the court may look into the words used.
  • For business occupiers the situation is different. A business can't exclude its liability for loss or damage leading to death or personal injury caused by negligence. A business can exclude its liability for other loss or damage if its reasonable to do so.
  • Contributory Negligence: This can reduce the amount of damages that the claimant receives by such percentage that is consiered reasonabble taking into account the claimants conduct.
  • Contributory negligence can be used on a child visitor depending on the age of the child and their understanding of danger.
  • Remedies: s1(3) OLA 1957 - Can claim damages for death and personal injury and for loss / damage to property (including someone else’s property) and any consequential economic loss

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Public Nuisance

  • A public nuisance is any nuisance that 'materially affects the reasonable comfort and convenience of a class of her Majesty's subjects.
  • A-G v PYA Quarries: Claimants were residents living near a quarry that caused vibrations from the explosions. Dust spread in dry weather. Injunction granted restraining the quarry owners from carrying on the nuisance.
  • A public nuisance is one which affects a right, a protection of a benefit enjoyed by members of the affected class because it interferes with a public's ability to make use of a right, or a right of way.
  • A public nuisance must affect a considerable number of persons or a section of the public.
  • R v Madden: The defendent had telephoned a bomb hoax to a steel works, and they were disrupted for about an hour. It couldn't amount to public nuisance as it only affected a few employees and they weren't a wide enough class of public.
  • "Aims to protect a class of their Majesty's subjects" A-G for Ontario v Orange: AG sought interim injunction to restrain D from holding outdoor rock concert on grounds of public nuisance. Evidence showed trouble with D’s prior concerts including drug use, open alcohol, public sex, trespassing. The injunction was allowed.
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Public Nuisance 2

  • Rose v Miles: A canal was blocked causing public nusiance.
  • Castle v St. Augustine's: Golf club was too close to a public road.
  • The Attorney General can sue on behalf of the class or some who has suffered special damages - does not need to have a interest in the land to sue.
  • CPS can take a criminal prosecution.
  • R v Rimmington: The defendent sent 538 racially abusive letters to various recipitants. Claim failed, no common effect on all of the recipients. A public nuisance is an act not authorised by law which omits to discharge a legal duty and endangers the life, health, property, comfort or public rights of a class of persons in a common way. Judges should not put criminal offences to unorthodox uses, but should prefer slow, incremental change and prioritise the use of statutory offences over common law offences.
  • Defences: Statutory Authority - Claimant bought action in nuisance for the smell, noise, and vibration created by oil refinary, which was authorised by an Act of Parliment, it failed.
  • Remedies: Damages or personal injury or an injunction can be taken out.
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Private Nusiance

  • Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment of the land.
  • In order to bring a claim a private nuisance, a claimant must have an interest in the land in which he asserts his enjoyment or use has been unreasonably interfered with.
  • Indirect interference generally means that the interference doesn't directly enter and damage your property. Dunton v Dover District Council - The owners of an old people's home complained about the noise coming from a children's care home. Claim failed because the children's sounds were everyday sounds, not high enough decibels.
  • Bone v Seale - D used farm for pigs. For over 12 years neighbours complained of smells and the boiling of swill for pig, some damages were awarded.
  • It can go beyond interference that makes it physically unpleasant (like noise or smell). Thompson-Schwab v Costaki - Said to be a private nuisance, an injunction was granted to stop the property being used for prostitutes.
  • Certain things will never amount to nuisance: Unwanted telephone calls; an owner of land isn't entitled to claim that his light has been interfered with by a neighbour and an owner can't claim that his view has been interfered with.
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Private Nuisance 2

  • Hunter v Canary Wharf - Homeowners felt that Canary Wharf was disruptng their television because the structure interrupted their reception. You can't claim for social benefit. You can't claim for a T.V. signal. Some of them didn't actually own their properties - renting.
  • When the courts are deciding whether or not the use of land is reasonable or not they take a number of factors into account: The character of the neighbourhood e.g. busy street or countryside village.
  • Sturges v Bridgman - The claimant built a consulting room next to the defendent's noisy shop. Couldn't use the prescription act as a defence, as the nuisance only became actionable at the time of purchase of the ‘shed’, it had not been actionable for 20 years, although the activity had occurred for more than 20 years.
  • Sensitivity of claimant: If the nuisance complained of isn't severe enough to cause damage to a normal person then you can't claim private nuisance. If the complaint is abnormally sensitive there could be no claim.
  • Robinson v Kilvert - D had a business of making paper boxes which required a warm, dry atmosphere in the basement. C used ground floor for the storage of brown paper which was damaged because of this. D wasn't liable due to the special sensitivity of the paper.
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Private Nuisance 3

  • McKinnon Industries v Walker - D manufactured steel and iron products 600 feet from C's property. C had flortists, and grew orchids which are very sensitive. C claimed that noxious fumes and smuts had killed lots of their plants. D's actions were unlawful nuisance and the C was entitled to recover damages.
  • Duration of nuisance: The longer the interference goes on then the more the courts are likely to consider this a nuisance. Crown River Cruises v Kimbolton Fireworks Ltd - D conducted a firework display, some burning debris landed on a barge which caught fire. D was liable despite the nuisance only lasting 20 minutes. The risk of damage could create a nuisance.
  • Malice: Whe considering whether an interference with enjoyment is reasonable or not, the court will look at the motives of the party involved. Christie v Davey - C was a music teacher, who lived in an adjoined house to the D's who complained about music and would bang on walls, shout and beat trays in retaliation. D's actions motovated by malice therefore nuisance.
  • Hollywood Silver Fox Farm v Emmett - C bred silver foxes, when pregnant they could miscarry if they were distrubed. D objected to the farm an fired a gun close to the breeding pens to impede breeding. D was liable because he was motivated by malice.
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Private Nuisance 4

  • Public Utility: If the use of land, is regarded as being socially useful, the courts are much more likely to decide the interference was unreasonable. Adams v Ursell - A house owner complained about neighbours fish and chip shop was emitting odours which impinged the enjoyment of his house. It was held that such odours might amount to a sufficient interference.
  • A owner, or tenant can sue, but not a person just living in a property e.g. guest.
  • Physical damage to land/and or damage to any goods on the land and loss of enjoyment of use of land can be sued for.
  • Defences: Statutory Authority - Allen v Gulf Oil - Claim failed as statute had given authority.
  • Prescription: If a nuisance has existed for 20 years+ then there is said to be a prescriptive right to continue - Sturges v Bridgman - He couldn't depend on this because the use of land pripr to construction was not preventable or actionable.
  • Consent: If the claimant has, at an earlier time, consented to the activity they can't claim it is a nuisance. It is not a defence to claim that the nuisance is being caused by an activity which is useful to the area. Miller v Jackson - C had bought a property near a cricket field and their property would get damaged now and again. The injunction was quashed and instead they had to pay for future damages because they had consented to a degree.
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Private Nuisance 5

  • Contributory Negligence: If the claimant has made matters worse their damages may be denied or reduced. However, it isn't a defence to claim that the defendent knew of the problem when they moved into the property they can claim they moved to the nuisance.
  • Act of a stranger: If a third party or an act of nature causes the nuisance it will be a defence.
  • Remedies: Injunctions: Stops the nuisance completely. Can be total or partial - it can limit it to certain times.
  • Damages: These can be claimed to the claimant's landor the loss of enjoyment of it. Damages can be claimed for personal injury which is associated with the loss of enjoyment. They can even claim for economic loss if they've lost money because of it.
  • Abatement: This is self help to stop the nuisance e.g. trimming back overhanging trees. It doesn't allow the claimant to trespass on the defendent's land.
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Rylands v Fletcher

  • This means that its no fault tort. You don't have to prove how or why it happened. Its much easier and cheaper to prove than negligence.
  • Facts: The D owned a mill and constructed a reservoir on their land, which was over a disused mine. Water filtered into the mine shaft and spread into an in use one. They were strictly liable for the damage caused by non-natural use of the land.
  • 1). There has to be storage of a non-naturally occuring substance.
  • Read v Lyons: C employed by D in their factory during WW2, and an explosion which injured them. There was no evidence that negligence had caused the explosion. The claim wasn't successful as only 2 out of 3 conditions were satisfied because there was no material that escaped from one property to another.
  • 2). The substance has to escape to another property
  • Hale v Jennings Bros: The D operated a chair-o-plane roundabout at a fairground. One of the chairs broke loose and hit he claimant. The D was liable for the personal injury.
  • 3). It has to be proved that it caused reasonably foreseeable damage.
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Rylands v Fletcher 2

  • Cambridge Water v Eastern Counties Leather: Solvents spilled from from the floor to the building into the soil below, which contaminated the water and they had to stop using the borehole. They weren't liable as the damage was too remote.
  • A claim can be made by the owner or occupier of land for any damage to the land caused by the escape of material, or products or material on the land that has been damaged.
  • Defences avaliable to defendent in this tort are:
  • consent of claimant to the storage
  • the escape was the fault of the claimant
  • the escape was the act of a stranger
  • the escape was an Act of God
  • defendent had statutory authority to the storage.
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Nervous Shock

  • In order to successfully claim it has to be shown: 1). That the defendent was negligent 2). Evidence of a serious psychiatric condition - more than temporary grief or fright 3). The need to establish that the condition has come about due to witnessing an accident involving an injured victim with whom the claimant has a close relationship.
  • Nervous shock has now been recognised as a medical condition in the form of: PTSD; depression; some form of personality change or the need for psychiatric treatment.
  • A primary victim are those who are involved 'mediately or immediately as a participant'. They can claim if they have suffered physical injury or psychiatric harm, fear for their own safety.
  • A secondary victim are those not within the physical zone of danger but witnesses the event.
  • Secondary victims have to: Prove negligence and pass; the Alcock criteria and a threshold test - if a normal victim wouldn't not have suffered nervous shock as the claimant did, then the claimant cannot claim.
  • Alcock criteria: 1). Close ties of love and affection to someone e.g. family, partner, close friends. 2). Close in time and space (proximity within 2 hours). 3). Must perceive with own unaided senses - they can't see through other source e.g. T.V.
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Nervous Shock 2

  • Rescuers will be primary victims if tey fear teir own safety. Chadwick v British Railways Boards - Man helped rescue those who were trapped in horrific train crash. As a result of what he saw, he suffered acute anxiety and received treatment for 6 months. He could claim because it was reasonably foreseeable that someone would try to help them.
  • White v Chief Constable of South Yorkshire: Police officers who were at the Hillsborough Disaster. They tried to claim on the grounds that as employees, the defendent owed them a duty of care not to cause psychiatric injury. Their claim failed since they were not themselves at risk of personal injury, so they couldn't succeed.
  • Alock v Chief Constable of South Yorkshire: People who saw the Hillsborough disaster on the T.V., some cases got through because of close ties.
  • McLoughlin v O Brian: There was a serious traffic accident, the mother was informed of the accident and saw her family and had severe shock, they were able to claim.
  • Page v Smith: The claimant was in a minor car accident due to the D's negligence, it triggered their ME which they were recovering from and it was permanent, their claim was successful.
  • Dulieu v White: Cart crashed into a pub, causing pregnant woman to go into premature labour, who had developmental problems. The claim was allowed.
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Vicarious Liability

  • In a situation where an employee negligently injures a person the employee will be primarily liable and the employer will be vicariously liable. There is a presumption that where an employer is held to be vicariously liable no fault is attacked to this liability.
  • The old test used to be known aas the control test: If you control what a person must do and how they have to do it you are an employer and they are an employee.
  • The courts now have a wider range of circumstances: Ready Mix Concrete v Minister for Pensions: 1). An employee agrees to provide work or skill for payment. 2). An employee agrees to be subject to an employer's control. 3). The terms of their agreement are consistent with terms normally found in employment contracts.
  • To test if the employee was acting in the course of his/her employment: The employer must authorise the act expressly, the act is unauthorised but done while the employee is at work.
  • Employers Indemnity: If an employer is vicariously liable and is successful sued, then damages will have to be paid by the employer. Under the Civil Liability Act 1978 the employer has an indemity against the employee from whom the liability originally arose. This means the employer can sue employee to try and get some of their money back.
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Vicarious Liability 2

  • When an employee is loaned out, the presumption will always be that the permanent employer will have vicarious liability. Where the loan is of an employee alone, the new employer may well have to take liability, but if they come with their own equipment, the permanent employer will be liable because the new employer will have less control.
  • Century Insurance v Northern Ireland Road Transport: A tanker driver employee set alight a petrol station, several cars and some adjoining houses by throwing a match carelessly away while refueling an underground petrol tank. An employer can be liable for the negligent actions of their employee or worse.
  • Limpus v London Omnibus - Against instructions, a tram driver raced another tram along its route in order to gain customers, a passenger was injured. He was doing his job so therefore the employers were liable.
  • Rose v Plenty: Against instructions, a milkman employed a 13 yr old boy to help him deliver milk. The boy was injured because of his negligent driving. He was still doing his job even though it was aginst orders.
  • Lister v Hesley - Claimants suffered systematic sexual abuse at a school for children with behavioural difficulties. Employer can be liable for the employee's criminal actions.
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Balancing Conflicting Interests

  • In every area of law there are potentially conflicting interests. An important reason for having laws is to set out rules, which should apply and ensure that all relevant interests are considered and possible conflicts are averted. The law also provides machinery – courts and tribunals- which ensure that if conflicts of interest do occur there is a means of settling them in way which tries to balance the opposing views as fairly as possible. In the nineteenth century, Rudolf von Jhering suggested law was a device for ordering a society in which many competing interests exist. It would be impossible for all these competing interests to be satisfied and the competition between them, without regulation from the law, would lead to anarchy and chaos. Therefore, he saw law as acting as a mediator assessing the value of each interest and determining the most practical and peaceful balance between them. Jurist Roscoe Pound, suggested that these competing interests could be classified into three groups: ‘Individual Interests,’ including interests such as privacy, property and domestic relations, ‘Public Interests’ asserted by individuals, or ‘Social Interests’ such as safety, health, public order, economic progress, the interests of the state, free speech and the ability of each individual to live a human life according to the standards of society.
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Balancing Conflicting Interests 2

  • Pound insisted that only equal interests, on the ‘same plane’, could be balanced. For instance, an individual interest cannot be balanced against a social interest. Their individual interests could not be properly weighed against the social interest in security. In practice, the courts do not always follow Roscoe Pound’s idea that you can only balance interests of the same kind, and one way of considering how effectively the law is able to balance interests is to compare public and private interests.  For example, in Private Nuisance the law may be concerned with achieving a balance between an occupier’s quiet enjoyment of their land (individual interests) and the public’s use of recreational facilities (public interests).
  • An example of where conflicts have had to be balanced is Dennis v MOD. The Dennis’ received £950,000 of compensation for the loud RAF jets that flew over their house. They were given this amount because the jets stopped them from being able to enjoy their property because it was impossible to hold a conversation, talk on the phone, or do gardening when they were flying. There was no injunction because there was a public interest because pilots need to be trained to fly expensive aircrafts in combat, as safely as possible.
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Balancing Conflicting Interests 3

  • To some degree it was a fair result for the Dennis’, as they stated that they were ‘delighted’ with the ruling, even though it fell short of the 10 million they were hoping for. This is likely because Harrier jets were supposed to be phased out in 2012, so they were hoping it wouldn’t be a problem for much longer anyway. This was a fair result for the MOD because even though they had to pay £950,000 to the Dennis’, they were able to keep flying without any restrictions which was important for them because they need to train pilots. Overall, both parties had to make sacrifices but both seemed relatively happy at the end of the trial. This seemed to be a case where balancing conflicts did actually work.
  • Another example of balancing conflicts is Miller v Jackson. Mrs Miller was claiming an injunction on the Lintz Cricket Club because cricket balls were thrown occasionally over to her house and would hit tiles or bricks, and once broke a window. Cricket had been played there for over 70 years. They sold a nearby field where a house was built which Mrs Miller bought. In 1976, after many complaints the club erected higher fences, which lead to less balls being thrown over. They also agreed to pay for damages, but Mrs Miller declined this help and went to court to get an injunction to stop them from playing.
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Balancing Conflicting Interests 4

  • The Millers were entitled to recover £24,4314 special damages and £150 general damages from the defendants for negligence and nuisance for personal inconvenience and interference with the enjoyment of their house and garden. The private interest was the Miller’s enjoyment of their property and the public interest was them being able to use the cricket grounds for their own enjoyment. The High Court judged that the injunction was justified and wanted to stop the cricket. The defendants appealed to the Court of Appeal. Lord Denning’s decision was that the cricket should not be stopped for one individual who should have known what they were getting themselves into. Geoffrey Lane and Cumming Bruce LJJ would have upheld the injunction, but felt that the damages were a sufficient remedy. To a degree this is an example of where balancing conflicts worked, as the Miller’s got compensation and the cricket club stayed open. However, the Millers did want an injunction, which they did not get, so the conflict wasn’t completely balanced.
  • ANPR means Automatic Number Plate Recognition and is a system of cameras set up all around the country which track people’s number plates to the hour, place and who owns the vehicle. There are around 8,300 in bus lanes, box junctions and traffic lights, but you can’t be charged with any speeding offences seen on these cameras.
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Balancing Conflicting Interests 5

  • It is used to help detect and deter criminality at a local, force, regional and national level, including tackling traveling criminals, Organised Crime Groups and terrorists. ANPR provides lines of enquiry and evidence in the investigation of crime and is used by LEA throughout England, Wales, Scotland and Northern Ireland. This information can be stored for up to two years. As a vehicle passes an ANPR camera, its registration number is read and instantly checked against database records of vehicles of interest. Police officers can intercept and stop a vehicle, check it for evidence and, where necessary, make arrests. A record for all vehicles passing by a camera is stored, including those for vehicles that are not known to be of interest at the time. The use of ANPR in this way has proved to be important in the detection of many offences, including locating stolen vehicles, tackling uninsured vehicle use and solving cases of terrorism, major and organised crime. Mike Penning, the policing minister said “The use of ANPR and access to the data it collects is subject to a stringent set of safeguards. The government aims to ensure that the public can be confident that surveillance camera systems in public places are there for their personal protection”.  Privacy campaigners have argued that it is a threat to people’s private lives and lack of transparency of the database.
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Balancing Conflicting Interests 6

  • Tony Porter, a former police chief stated “There is no statutory authority for the creation of the national ANPR database, its creation was never agreed by parliament and no report on its operation has even been laid before parliament”. He also thought that it could be “far more intrusive than communication intercepts”. Some privacy campaigners say the data collected and stored does not only relate to criminal suspects- “The ANPR database is about collecting information that’s 99% about innocent people and people who aren’t likely to be suspects. We are constantly told by politicians that this is only for suspects and terrorists, but there’s no getting around the fact that they are capturing massive amounts of data on the record of people’s cars, which means they can start to do very crude tracking of vehicles around the country. At the moment the balance of interests lies more on the public side as the police are allowed to keep tracking this data, even though many people aren’t happy about it. The private interests of people should be taken into consideration because innocent people shouldn’t have their information tracked, but of course the police will not know who is innocent and who is not. A lot of the time, conflicting interests can be balanced out, just like in Dennis v MOD, but on default, it is usually the public's interests which usually win out, as it is seen that the majority of people being happy is more important than a few.
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Morality Evaluation

  • Law and morals are both types of rules for living in society. There are many different definitions for law such as Salmond’s who states law is the body of principles recognized and applied by the statute of the administration. Morals also have many definitions such as Harris’s who stated morality are codes, beliefs, values, principles and standards of behaviour, some versions of which are found in all social groups. For centuries the most creative source of legal rules was the common law. Areas of law like tort, contract, and crime, have been developed mostly by Judges. These rules originate from places such as Holy books, traditions, customs and statutes. For example in British Railways Board v Herrington the principle was made by the judges that occupiers can owe a duty of care to trespassers. During the 20th century Parliament became increasingly more active in creating laws. More recently the European Union has become a major source of law making through treaties, regulations and decisions. It is hard to trace back morals to their origins. For some morals are based on religious teaching while many others base it on upbringing, peer reviews or their own consciences. When there is a breach of law people can be sanctioned, such as a life sentence for murder.
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Morality Evaluation 2

  • Whereas when there is a breach in morals people can be excommunicated from church as punishment but in the UK this does not cause a breach of civil or criminal law. Somethings can be immoral and not illegal, for example adultery and vice versa such as some speeding offences, whereas somethings are illegal and immoral like theft. Our laws reflect the Judeo-Christian tradition and our rules are based on the Ten Commandments e.g. thou shalt not kill is reflected in our law of murder.
  • John Stuart Mill, stressed the importance of individual liberty. Mill argued that "self government" does not really mean the government of each by himself, but rather the government of each by everyone else, and that "the will of the people" means the will of the most numerous and vociferous part of the people, who may actually want to oppress the rest. "That the tyranny of the majority should be included among the evils against which society must be on its guard. There must be a limit to the legitimate interference of collective opinion with individual independence, and the practical question is where that limit should be set. “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self protection”. The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.
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Morality Evaluation 3

  • Mill admitted that there are uncertainties and exceptions to this principle. He conceded that society may make laws to protect children and “primitive”(!) people who do not have the maturity to make their own choices, but ignored the fact that few adults really understand fully the consequences of their choices. The opposite view was held by Sir James Stephen, one of the leading criminal judges of the late 19th century. He felt the prevention of immorality (which he defined by "the unanimous opinion of society", though probably meaning the opinion of the ruling class of his day) was a proper end in itself, justifying legal intervention. "I think that the attempt to distinguish between self regarding acts and acts which regard others, there are acts of wickedness so gross and outrageous that…[protection of others apart] they must be punished at any cost to the offender and punished if they occur with exemplary severity”.
  • The Wolfenden Committee was set up to investigate whether homosexuality should continue to be criminalised. They preferred Mill's views, and applied these views in two major recommendations which were later implemented by legislation. Prostitution ceased to be a crime in itself (since it harmed no one except the prostitute and her client, both of whom were consenting), but the laws against soliciting (which causes harm by annoying innocent passers-by) and living off immoral earnings (which involves the harm of exploitation) were strengthened.
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Morality Evaluation 4

  • Homosexual acts between consenting adult males in private were decriminalised by the Sexual Offences Act 1967, though it was not until December 2000 that the age of consent was reduced to 16, as it has long been for heterosexual acts. “It is not the duty of the law,” said the Report, “to concern itself with immorality as such ... it should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive or injurious.”
  • In 1958 Devlin agreed with Wolfenden but only to the extent that he believed homosexuality should be ‘tolerated’ on compassionate grounds. He thought however that society retained a right to sanction behaviour whenever it posed a threat to society. He believed society always retained a right to pass judgement on behaviour. For him “there can be no theoretical limits to legislation against immorality.” On the basis of Wolfenden euthanasia should be legalised too. He also said “Society means a community of ideas: without shared ideas on politics morals and ethics, no society can exist…if men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail; if, having based it on common agreement, the agreement goes, society will disintegrate”.
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Morality Evaluation 5

  • In 1963 Hart defended Mill and Wolfenden and criticised Devlin. Hart went so far as to say that there could be reasons why society might enforce laws for the individual’s own good. He agreed with Mill’s claims for the individual to pursue his own lifestyle but rejected that it could not be limited only if it harmed the public sphere. Hart believed that not all the morals espoused by a society would be defensible. (eg society had formerly sanctioned slavery). Devlin according to Hart, is saying that if you break one moral code you are in danger of breaking others because Devlin sees ‘morality’ as a single seamless web. He felt that a society could not evolve morally without losing its core morality or identity.
  • These debates are found in case law also. In R v Brown, the Defendants were convicted on various counts of ABH and wounding a under the OAPA Act 1861. The injuries were inflicted during consensual homosexual sadomasochist activities. The trial judge ruled that the consent of the victim conferred no defence and the appellants thus pleaded guilty and appealed. Lord Templeton reflecting the views of Stephens, stated “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction."
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Morality Evaluation 6

  • Templeton represented the Majority decision but Lord Mustill in the minority announced “that very many people, if asked whether the appellants' conduct was wrong, would reply "Yes, repulsively wrong", [but] would at the same time assert that this does not in itself mean that the prosecution of the appellants under sections 20 and 47 of the Offences against the Person Act 1861 is well founded." His position reflected that of Mill. Therefore, this reflects the view of Devlin more as it was seen more important to protect public morality.
  • In Shaw v DPP the appellant published a 'ladies directory' which listed contact details of prostitutes, and would charge them a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959 and appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. The appeal was dismissed. Viscount Simonds said "To one of your Lordships it may appear an affront to public decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life".
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Morality Evaluation 7

  • Lord Reid stated "Notoriously there are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in." This signals that the law would attempt to uphold society’s ‘moral values’ according to Devlin’s doctrine.
  • In Knuller v DPP the defendant published a gay contact magazine thereby conspiring to corrupt public morals. In Shaw "conspiracy to corrupt public morals” existed despite many commentators believing that it did not; effectively the House of Lords created it. Lord Reid stated: “I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it".
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Morality Evaluation 8

  • Sometimes the law lags behind the morality of the majority in society such as in R v R where matrimonial **** was no longer seen as an exception. This happened in 1991, but before then society’s views to matrimonial **** had been like that for some time. Sometimes the State in Acts of Parliament leads the way – eg in Equality legislation. Even when gay marriage was legalised, some individuals allowed their religious and moral outlooks to excuse discrimination – this was rejected in the cases of Bull v Hall and McFarlane v Relate. In the UK different countries have different rules on abortion that reflects the morality of that area. For example in Northern Ireland the law on abortion is much stricter which is reflected in the recent conviction of a woman for procuring an abortion in Northern Ireland.
  • Euthanasia has been a difficult subject for some time, as some in society argue it should be legalised whereas others don’t think the law should change. Diane Pretty tried to get the law changed so that her husband could assist her to commit suicide, but her appeal was rejected. Tony Nicklinson also lost his case to allow doctors to help end his life after he became paralyzed from the neck down.
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Morality Evaluation 9

  • Society may be diverse but generally all people must have the one legal system for the sake of legal consistency. Historical influences on moral content in law is unavoidable. Shared moral values can be agreed on even in a diverse plural society, which can better the society. Such diversity could end up in civil unrest in a worst case scenario. There may be contested views, which could result in disrespect for the law and even law breaking.
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Fault Evaluation

  • There is a general principle that it is not considered appropriate to subject a person to legal sanctions unless it is shown that the person did the act in a ‘blameworthy manner’. In criminal law this means that a defendant should not be found guilty and sentenced without proof of some fault on his part. The reason for this is that the consequences of criminal law are so severe that there has to be some fault on their behalf to bring them to the criminal courts. This is because the consequences of receiving a conviction and sentence will be severe on the defendant’s future e.g. it could cause them problems when trying to get a job in the future, so they should only suffer these consequences if they are at fault.
  • Some offences will carry greater fault than others and thus these offences will carry greater consequences. An example of this is that the offence of murder can give a punishment of a mandatory life sentence, whereas assault only has the punishment of 6 months imprisonment. This is because one of the offences is much more serious than the other. In criminal law the prosecution needs to prove the actus reus and mens rea of the offence. The actus reus of an offence usually requires a positive voluntary act, which both fatal and non-fatal offences usually have.
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Fault Evaluation 2

  • There is some criminal liability for omissions, but there is lesser fault in a criminal omission than in a positive voluntary act. An omission is when you don’t act when you are supposed to, it may not include a positive voluntary act as the person may not realise that they are doing an omission. Case examples of this are R v Dytham where a police officer stood by whilst a bouncer kicked a man to death which was an omission, so the defendant is at fault. Another case is R v Miller a man lit a cigarette and fell asleep causing a small fire. He didn’t try to stop the fire, and simply moved into another room, so he was at fault for not doing anything. R v Stone and Dobinson was a case where a man looked after his sister who had a mental illness, but failed to look after her causing her death, showing that he was at fault.
  • There will be even less fault in a state of affairs crime such as Larsonneur where a woman was deported to England and immediately arrested even though she didn’t choose to come to the country. The law will still treat them as a criminal even if they are not at fault. Whatever the offence, it will have to be shown that the defendant caused the crime as if they did not they cannot be said to be at fault. Case examples of this are R v Smith where a soldier stabbed a fellow soldier, but on the way to hospital the victim was dropped twice and the treatment given to the patient was palpably wrong.
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Fault Evaluation 3

  • The stab wound was the cause of death, so the defendant was at fault. Another case R v Blaue is where the defendant stabbed a girl when she refused to have sex with him, and then refused to have a blood transfusion and died. The wound was the operative cause of death, so the defendant is at fault. Finally, morally blameless offences such as R v Cox where he (at her request) ended an elderly patients life.  He is guilty of mercy killing even though his actions are by many considered morally blameless and therefore not at fault.
  • Intention is the most serious form of mens rea of a crime and is required to be proved for serious crimes like intent to murder; intent to commit GBH. Another form of mens rea is recklessness which carries less fault as there should be no planning involved. A case example of this is R v Cunningham where a man ripped of a gas meter, which caused gas to seep into a nearby house and killed a woman. The defendant was reckless when he did this, and didn’t actually plan it, so they are less at fault. Another less common type of mens rea is gross negligence which is where an omission is so great that it leads to criminal neglect. Other types of mens rea are direct intent, oblique intent and subjective recklessness which all show different levels of fault and generally result in different sentences. The thin skull rule suggests that a defendant must take their victim as they find them. This can lead to questions whether decisions like in R v Blaue show sufficient fault for criminal liability as it could be suggested it is based on the defendants ‘bad luck’.
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Fault Evaluation 4

  •  Fault can be removed of lessened by some defences. Automatism, insanity and self-defence can completely remove fault. Whereas, intoxication, provocation, and diminished responsibility can all lessen the level of fault present, which will give a lesser defence and therefore a smaller punishment. The level of fault is looked at and reflected in the sentence through things like pre-sentence reports. Aggravating and mitigating factors allow those who try to help the situation receive a lesser punishment compared to those who aggravate the situation who deserve a harsher sentence. The consequences for someone found guilty are often far reaching - criminal record, lack of job opportunities, stigma etc. This means that fault should be an essential part of criminal law as the consequences are so serious.
  •  Strict liability offences are offences where only the actus reus is required, not the mens rea. These offences are usually regulatory crimes such as littering, speeding and other motoring offences. The presumption of mens rea can only be displaced when the offence is clearly one of strict liability which will only happen when the offence deals with an issue of social concern. The greater the punishment the more likely the offence will require a mens rea. The punishment is usually a fine.
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Fault Evaluation 5

  •  A strict liability crime cannot be a true crime such as in Sweet v Parsley where a teacher let her house out to her students, but didn’t realise they were smoking cannabis. This was not a strict liability case, so the mens rea was required to impose liability. In B v DPP a 14 year old boy asked a 13 year old girl to give him oral sex, this was a true crime, and needed a stronger presumption of mens rea. This meant that the conviction against the boy was quashed. Strict liability is essential when prosecuting companies which cannot form a mens rea.
  •  The advantages of strict liability are the protection of the public as strict liability raises standards where the health and safety of the public is at stake and forces those in a position of responsibility to take extra precautions, shown in Alphacell and Woodward. It promotes enforcement of the law as strict liability ensures more convictions are secured and does not allow people to escape liability through a fabricated account of their state of mind. It is often argued that imposing strict liability will lead to people taking more care and act as a deterrent to others. The majority of strict liability offences are dealt with administratively often through the post without the need for a court hearing. If mens rea was required to proved in every case for such offences, the courts would be unable to cope with the workload. However, the disadvantages are a person may be liable where they are not at fault and have exercised all reasonable care.
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Fault Evaluation 6

  • This offends the natural sense of justice as illustrated in the following cases: R v Howells where the defendant was liable despite being unaware that he required a licence and had no intention to use the gun as a weapon. In order to act as a deterrent, a person must have knowledge of what they are doing is wrong before being able to take steps to prevent it. In many cases the defendant is unaware of the circumstances leading to liability.  Any criminal offence carries a stigma and needs to be declared for employment purposes. It can cause immense damage to a person's or a business' reputation and therefore proof of fault should always be a requirement in establishing criminal liability.


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