BTEC Level 3 Applied Law

Negligence - (Caparo Test) Proximity (Part 1/3)

Bournhil v Young

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Negligence - (Caparo Test) Fair and Reasonable (Part 2/3)

Hill v Chief Constable of West Yorkshire Police

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Negligence - (Caparo Test) Foreseeable (Part 3/3)

Kent V Grithiffs

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Damage - Factual Cuasation

Factual Causation is proved through the 'but for test' Barnett v Chelsea and Kensington Hospital

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Damage - Intervening act

First incident then second incident (intervening act) and then damaged caused

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Damage - Causation

Factual Causation - 'But for' Test -Barnett v Chelsea and Kensington hospital

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Damage - What is the Thin Skull rule?

This means that if a person injures someone in a car crash, it does not matter in the eyes of the law, whether the victim has a particular sensitivity to injury (Smith v Leech Brain)

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Damages - Special Damages

These are losses that can be calculated at the time of the trial.Pecuniary losses are financial losses such as lost wages This includes a loss of salary to date, damage to property and expenses

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Damages - General Damages (1/2)

These are all other forms of financial compensation. There are two elements to general damages. Damages for the effect of the injury- pain, suffering and loss of amenity

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Damages - General Damages (2/2)

Damages for future financial loss – loss of future earnings and the effects of loss of expectation of life.

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Damages - Pain, suffering and loss of amenity

This is very difficult to calculate Every case is different The amount will vary with the individual But it will take into account medical reports and other evidence in court. The test is subjective (based on personal feelings or opinions)

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Damages - Loss of amenity

The reduction in the ability to perform everyday tasks .Also includes all manner of interference with hobbies and pastimes, loss of skill and an impact on sex life and everyday tasks such as getting dressed.

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Damages - Loss of amenity and Pain,suffering and loss of amenity DISTINCTION

Someone in a Coma. Clearly, there is a total loss of amenity as the victim can do nothing Little or nothing would be awarded for pain and suffering since the Claimant has no subjective awareness of pain and suffering

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Damages - Are claimants compensated for the physical injury itself?

A claimant is not compensated for the physical injury itself. The compensation is for the loss suffered as a result of that injury, such as not being able to reach full earnings potential.

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Damages - Loss of earnings

This essentially looks at how much money you lost as a result of the injury, the court has to take into account things such as pensions and pension rights, tax and benefitsPickett v British Rail Engineering Ltd

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Damages - Mitigation of Loss

This means that claimants are required to take reasonable action to keep their losses to a minimum and defendants cannot be forced to pay for avoidable losses.

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Damages - Contributory negligence

This principle is that if a claimant has contributed to the losses then a proportion of the damages will be lost.

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Damages - Payment of Damages

All special damages and most general damages are paid as a lump sum.

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Damages - What if the defendant can't afford to pay a lump sum?

It may be better for both parties to organise payment through the use of a structured settlement.

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Damages - What is Res Ipsa Loquitur

it is presumed that the incident was a result of a negligent act or omission, so that the defendant then has to show that they were not negligent.

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Damages - Res Ipsa Loquitur test (Part 1/3)

The thing that caused the damage was under the sole control of the defendant.

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Damages - Res Ipsa Loquitur test (Part 2/3)

The incident is one that would not have happened unless someone had been negligent

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Damages - Res Ipsa Loquitur test (Part 3/3)

There is no other obvious reason as to why the incident occurred.

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Damages - What does Res Ipsa Loquitur test mean?

All it means is that the defendant has to show, on the balance of probabilities , that they were not negligent. If the test applies, It doesn't automatically mean that the defendant was liable in negligence

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Breach of Duty - What is a Reasonable Person

One who takes a degree of care given the risk involved.’

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Breach of Duty - Special Characteristics of Defendant (Professionals)

To prove a breach in duty of care it must be shown that; ‘ The professionals conduct fell below that of a reasonably competent professional in the same are of expertise.’

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Breach of Duty - Special Characteristics of Defendant (Children- under 18)

‘Comparing the care taken with that of an ordinary young person of the same age.’

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Breach of Duty - Special Characteristics of Defendant (Novice (learners)

The standard of care of someone learning a skill or profession is ; ‘that of a reasonably competent person with that skill or profession’ - Nettleship v Weston

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Precedent - What are Precedents

Precedents are the statements of what the law is Students and lawyers, use them as authorities to justify their arguments about what the law is and why it applies to the case they are presenting.

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Precedent - What is a Judicial Precedent

System where judges follow the decisions in previous cases where the facts are the same. Stare decisis is a Latin phrase that means to ‘stand by the decided decision’

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Precedent - Hierarchy of Courts

The general principle is that the decisions of a court at one level must be followed by the courts at the same level or below it.

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Precedent - Supreme Court

The Supreme Court is the highest authority in the interpretation of domestic law in the UK. If it were not allowed to depart from it’s own decisions then the only way a change could be made would take new law being made by an Act of Parliament.

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Precedent - What is a practice statement

The 1966 Practice Statement stated that although the House of Lords would treat it’s decisions as normally binding, it would depart from these when it appeared right to do so. However this right has been used very rarely since then, so that certainty

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Precedent - Court of Appeal

The C o A must follow the decisions of the Supreme Court, even if the C o A judges think that the law is incorrect. Only the Supreme Court (or an Act of Parliament) can change a decision by the Supreme Court

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Precedent - Ratio Decidendi

This is the legal reason for a decision and becomes the precedent It is the most important part of a judgement

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Precedent - Ratio Decidendi (Example)

The case of Donoghue v Stevenson (1932) illustrates the ratio decidendi. The ratio of this case was that manufacturers owe a duty of care to the end user of their goods.

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Precedent - Orbiter Dicta

Obiter dicta means ‘things said by the way’ (a judges opinion) Any observations on the law that do not fall within the ratio decidendi of the case can be described as falling within the obiter dicta.

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Precedent - Law Report (Definition)

A law report is a record of a judge’s decision that sets a precedent.

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Precedent - Law Report

Law reports are only published when: the case sets out a new principle of law, makes a change to the law or clarifies an aspect of the existing law

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Precedent - Law Report (Historically)

Some early reports were unreliable as they reflected what the barrister hoped the outcome of the case would be rather than what was said.

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Precedent - Law Report (Today) (1/3)

Law reporting today is precise and accurate

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Precedent - Law Report (Today) (2/3)

Law Reports incorporate the full judgement given by the court, together with a summary of the case known as the head note or a summary report. Case Summaries are much shorter, less formal and are produced more quickly.

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Precedent - Law Report (Today) (3/3)

Many Law reports are now published online all though published printed versions are still produced.

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Precedent - Binding Precedent

When a case involves a point of law, the lawyers for both parties will research past cases in the Law Reports to try and find decisions that will help their client win their case

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Precedent - Binding Precedent (When it's used)

If there is a previous case on similar facts, the judge will consider that case if the case if the decision is by a court above him in the hierarchy, he/she must follow it

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Precedent - Original Precedent

If the point of law that the case contains has never been decided on before then the decision the judge comes to will form a new precedent for future cases. e.g. R v R

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Precedent - Persuasive Precedent

Sometimes there is a point of law but it does not have to be followed in a later case However the judge may still consider it and if he thinks that it was a correct decision he can decide to follow it

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Avoiding Precedent - Overruling

This is when the later court decides that the law in a previous case was wrongly decided This was the case in Herrington where the House of Lords decided to OVERRULE the old decision made in 1929

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Avoiding Precedent - Distinguishing

This is a method used by judges to avoid following what would otherwise be a binding precedent The judge will point out some difference in facts between the previous precedent and the present case he is trying

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Avoiding Precedent - Reversing

This occurs on appeal when a higher court rules that the lower court made the wrong decision in the same case

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ADR - What is ADR?

This involves finding other ways to resolve civil disputes.

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ADR - What is ADR?

The use of ADR was a key recommendation of the Woolf Report to reduce the number of cases, provide a cheaper and less adversarial form of justice, as well as a less formal and complicated system.

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ADR - What are the Advantages (1/3)

Speed - Quicker than going through court system and Less cases means that the legal system can operate more quickly with less delays.

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ADR - What are the Advantages (2/3)

Cost to the parties - ADR proceedings are much less formal and expensive ADR may not require the cost of using the court barrister or solicitors.

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ADR - What are the Advantages (3/3)

Expertise - In ADR experts are frequently used where judges are unlikely to have specialist knowledge.

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ADR - What are the Disadvantages (1/4)

Lack of Legal Expertise: Sometimes ADR does not have the legal expertise that the courts have.

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ADR - What are the Disadvantages (2/4)

No system of precedent means that it difficult to predict the outcome of cases.

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ADR - What are the Disadvantages (3/4)

Unenforceable: Some forms of ADR means that the outcome is not enforceable.

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ADR - What are the Disadvantages (4/4)

If ADR does not work then court action is required with the extra cost that entails.

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ADR - What is Mediation?

This is where a mediator is brought in to help the parties to reach a compromise without imposing a solution on them. The mediator will talk to both sides and act as a neutral go-between.

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ADR - What is Mediation Used?

This is used in a number of civil disputes where the relationship between the parties has broken down. Companies often use this method to resolve commercial disputes. It is also used in marital disputes with Relate.

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ADR - What is Conciliation?

This half way between arbitration and mediation. The conciliator offers advice to the parties and plays a more active roll than the mediator. The conciliator will advise the parties.

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ADR - What is Arbitration?

This is a private process by which an independent person called an arbitrator resolves the dispute by making a decision that binds the parties.

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ADR - When is Arbitration Used?

They are quite common in industrial disputes through ACAS. The Chartered Institute of Arbitrators or CIA arbitrates consumer disputes.

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ADR - Arbitration (Disadvantage)

Arbitrations may have a longer waiting list than legal trials

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ADR - What is Negotiation?

This is the cheapest form of ADR. It is where the parties or their legal representatives discuss their differences and use compromise to reach a solution.

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ADR - When is Negotiation Used

This can happen when the relationship between the parties has not broken down.

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ADR - Negotiation (Advantage)

Decisions can be made very quickly and is cheapest form of ADR

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ADR - What is Ombudsman? (1/2)

This a person with special powers to investigate cases in certain areas such as health, pensions where there may be a dispute particularly if a government body is involved. An ombudsman can only recommend how a dispute maybe resolved.

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ADR - What is Obdudsman? (2/2)

His or her recommendations cannot be enforced

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ADR - What is a Tribunal? (1/2)

This similar to a court without the ritual or formality. They are involved in a number of specialist tribunal which bear their name: Employment Tribunals, Immigration Tribunals, Social Security Tribunals etc.

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ADR - What is a Tribunal? (2/2)

Three people sit on a tribunal, two with the specialist knowledge on the area involved and a qualified chairman of tribunals.

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ADR - Tribunals (Advantages) (1/7)

Quicker than the courts with shorter waiting lists

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ADR - Tribunals (Advantages) (2/7)

Cheaper and more accessible than the courts.

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ADR - Tribunals (Advantages) (3/7)

More expertise in specialist fields such as employment where specialists sit on cases.

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ADR - Tribunals (Advantages) (4/7)

Privacy because cases are often heard in private unlike a court case

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ADR - Tribunals (Advantages) (5/7)

Reduces overloading of cases.

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ADR - Tribunals (Advantages) (6/7)

Less adversarial than the courts when tribunals use a more inquisitorial approach.

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ADR - Tribunals (Advantages) (7/7)

Tribunal cases are less formal and simpler.

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ADR - Tribunals (Disadvantages) (1/4)

Lack of openness because hearings are heard in private where court cases are heard in public

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ADR - Tribunals (Disadvantages) (2/4)

Little independence in Administrative tribunals.

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ADR - Tribunals (Disadvantages) (3/4)

There is no legal aid in tribunals

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ADR - Tribunals (Disadvantages) (3/4)

Less accessible to the public because more and more cases use solicitors and barristers

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ADR - Control of Tribunals (1/2)

They are controlled by the high court through an application for judicial review which will judge if the tribunal has operated ultra vires or beyond their powers.

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ADR - Control of Tribunals (2/2)

Most tribunals can appeal through the court system. In the case of employment tribunals appeals are heard through an EAT or Employment Appeals Tribunals

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Civil - 6 Types of Civil Law

Contract, Tort Family Law, Law of Succession, Company Law and Employment Law

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Civil - Tort

A tort occurs where civil law says that even though there is NO contract between the parties, one of them owes a legal responsibility to the other, and they have done or not done something to breach that responsibility.

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Civil - Where are Civil Court cases held?

Civil cases are held in either the County Court or the High Court

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Civil - Who is the claimant?

Persons stating the case

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Civil - How does a civil case end? (1/2)

A defendant in a civil case is found ‘liable’ or ‘not liable’.

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Civil - How does a civil case end? (2/2)ions to stop similar actions fro

Whilst at the end of a civil case anyone found liable will be ordered to ‘put right’ the matter as far as possible. Usually this is done by paying compensation (damages).

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Civil - What is the Standard of Proof?

Civil cases have only to be proved on a ‘balance of probabilities’ This is a lower standard and the judge must decide whether the matter in the case was probable that it either did or did not happen.

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Civil - Costs of Taking Someone to Court - Court Costs

Cost is represented by the fees charged by the court services for starting a case and continuing to other stages in the procedure to trial.

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Statutory Interpretation - Definition

Statutory Interpretation involves the judges applying an Act of Parliament to an actual case. The wording of the Act may seem clear when it is drafted and checked by Parliament, but it may become problematic in the future.

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Statutory Interpretation - Intrinsic Aids (Definition)

These are sources within the Act (internal aids).

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Statutory Interpretation - Intrinsic Aids

To determine the meaning of a section of an Act of Parliament, the judge may wish to look at other sections in the Act: the definition section, preamble, and the long and short title.

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Statutory Interpretation - Extrinsic Aids (Definition)

These are sources outside the Act (external aids).

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Statutory Interpretation - Extrinsic Aids

Dictionary, Hansard, Previous Acts of Parliament on the same topic, Case law and the Interpretation Act 1978

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BTEC Level 3 Applied Law

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