Floatnotes law revision notes

Employer’s Liability 19

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Employer’s Liability

Employers are liable breaches of their specific duties of care, a statutory requirement or vicariously liable for employees’

torts. There may be more than one course of action available.

Liability in the tort of Negligence

These are additional duties of care that apply to employers and can be slotted in the general structure as

established duties.

1. Competent staff

2. Adequate plant and equipment

3. Safe system of work

4. Safe place of work:

The defence of volenti virtually never works in employment cases as there is economic duress to work.

For contributory negligence allowances are made for working in noisy and repetitive conditions: Caswell .

Competent staff

An employer is responsible for:

o selection of staff;

o provision of training;

o provision of supervision;

o dismissal of employees who, despite training, still pose a risk to staff; and

o pranksters where the employer knew they were a risk (e.g. they’d pranked before): Hudson v Ridge

Manufacturing Co. Ltd. or where they ought to have known: Waters v Commissioner of Police for the Met.

Adequate plant and equipment

This can be defective equipment or lack of equipment (e.g. no safety goggles)

Employees can sue their employer for defective equipment as well as the manufacturer under s 1 Employer’s

Liability (Defective Equipment) Act 1969 . Contractors cannot claim under this, only employees. They

must establish:

o fault on the part of someone; and

o causation: the fault caused the injury.

Safe system of work

This includes the physical layout, the sequence of work, training, warnings and instructions.

Employers must ensure that employees actually use the safe system provided.

Safe system of work includes stress (Walker v Northumberland CC ) only if the injury to health from

work-induced stress was reasonably foreseeable: Hatton v Sutherland .

o Employers are generally entitled to assume employees are up to the normal job pressures: Barber v

Somerset CC .

o Signs from the employee are considered: Barber v Somerset CC .

o This is separate from pure psychiatric harm. The control mechanisms are not relevant.

Safe place of work

This overlaps with occupier’s liability, but is more onerous as it is non delegable and applies wherever the

employer is working: General Cleaning Contractors v Christmas.

Cattle

And

Sheep

Pen

from Wilsons & Clyde Coal Ltd v

English .

from Latimer v AEC .

Sample Name ID: 0000

Occupier’s Liability: Visitors 23


Occupier’s Liability: Visitors

Occupier’s liability to visitors is governed by the Occupier’s Liability Act 1957 .

Occupiers liability

Does the situation fall

within the Occupier’s Liability Act

1957?

An occupier

•This is determined by the occupational control test: “someone who has a sufficient degree of control over the premises”: Wheat v Lacon.

•There can be multiple occupiers.

•An occupier could be a contractor.

A visitor

•This is anyone with express or implied permission to be on the land: s 1(2) Occupier’s Liability Act.

•It includes people entering under terms of a contract: s 5(1), and people exercising a right by law s 2(6).

•It does not include trespassers (e.g. walking past a ‘staff only’ sign or someone who hasn’t paid for a ticket in a cinema).

Loss due to state of the

premises

•Loss suffered by the visitor must be caused by the state of the premises.

•Premises include moveable structures such as aircraft: s 1(3)(a).

Causation and defences

Common duty of

care

Duty of care

Breach of duty

Standard of care

•The “common duty of care” is to “take such care is reasonable in the circumstances to see that the visitor is reasonably safe in using the premises for the purpose which he is permitted to be there” s 2(2).

•It is directed towards the visitor’s safety, not the premises.

•Older people or children create a higher duty of care.

Breach

Warnings

Discharge of duty

•The duty can be discharged if 3 provisos are met (s 2(4)(b)):

1. The work was of construction maintenance or repair;2. It was reasonable to engage the contractor to carry out the task; and

3. Reasonable care was taken to check the contractor’s work was carried out correctly.

•A reasonable check was not carried out in Woodward v The Mayor of Hastings where they should have checked ice was clear from the steps.

•A check is not required where the work required great technical skill, e.g. checking lift servicing had been done correctly: Haseldine v Daw & Son Ltd.

•The standard of care is the ‘reasonable occupier’, considering all circumstances.

•Consider factors such as: the nature of the risk, the purpose of the visit, the seriousness of injury risked, the magnitude of risk, how long the risk was present and the cost of precautions.

•Consider the type of visitor:

o Children: may be ‘allured’ by interesting but dangerous things: Glasgow Corporation v Taylor. Although one may expect them to be supervised: Phipps v Rochester Corp.

o Skilled claimants: can be expected to guard against defects relevant to their calling: e.g. chimney sweeps being aware of the dangers of poisonous gas in chimneys: Roles v Nathan.

•Warning signs can mean the standard of care has been met.

•The warning “must enable the visitor to be reasonably safe” (s 2(4)(a)).•Consider where the sign was placed and whether it was too vague (e.g. ‘Danger’).

Causation

•Normal causation and remoteness rules apply: Jolley v Sutton LBC.

•Volenti applies: s 2(5).

•“All visitors enter at their own risk” is not specific enough for volenti.•Liability can be excluded if there is a clearly worded notice, covering

the loss: White v Blackmore.

•It must be reasonable to exclude liability: s 2(2) UCTA 1977. Consider the practical consequences and bargaining powers of the parties: Smith v Eric S Bush.

•Personal injury and death cannot be excluded: s 2(1) UCTA 1977.

•Contributory negligence applies as normal.

Defences


Parliamentary Supremacy 49


Parliamentary Supremacy

Questions on Parliamentary supremacy can all be answered using the following points as underlying content.

Elements

This wheel summarises relevant content and serves as a cue for recalling more detailed information. Go round the whole

wheel rapidly if faced with a ‘write everything about this topic’ style question.

Supremacy basics

Dicey’s definition

Dicey ’s definition of Parliamentary supremacy is that: “Parliament has the right to make or unmake any law

whatsoever; no body or person can set aside legislation of Parliament”.

This means that Parliament is the supreme law making body and can enact or repeal laws on any subject.

It also means that Parliament cannot be bound by a predecessor or bind a successor.

Furthermore, no one may question the validity of an Act of Parliament or declare it unlawful.

Dicey’sdefinition History and

development of the

Enrolled Act Rule

Examples of parliamentary

supremacy

The doctrine of express and implied repeal

Domestic limitation:

Acts of Union


DevolutionDomestic limitation:

Acts of independence


Limits to implied repeal

Manner and form debate:

for

Manner and form debate:

against

European limitation:

ECA 1972

European limitation:

HRA 1998

ECHR

Parliamentary Supremacy


Creation of Trusts 75


Creation of Trusts

Structure

This flowchart sets out the elements that are required for a successful gift or trust. Each element is expanded upon on

the subsequent pages. Many questions can be answered by checking the necessary elements.

Gifts and trusts

Living settlor

Gifts

Mental capacity

3 certainties (object and subject

rarely an issue)

Transfer of legal title formalities

Trusts‘express private

trusts’

3 certainties


Beneficiary principle

Rule against perpetuities

Administrative unworkability

Capriciousness

Special land formalities

Dead settlor(using a will)

Gifts

Will formalities

3 certainties(intention rarely

an issue)


Trusts

Will formalities

3 certainties


Administrative unworkability

Capriciousness

Powers of appointment

3 certainties



Capriciousness

Rule against perpetuities


100 Remedies against Third Parties


Remedies against Third Parties

It is really important not to confuse this with remedies against trustees or fiduciaries as although much of the topic is the

same there are also some differences.

Outline of possible remedies

This flowchart provides a structure in which to understand the possible remedies.

Imposing a constructive trusteeship

If a constructive trusteeship can be imposed then an equitable personal or proprietary claim may be brought.

This gives the claimant the most options and will generally only happen where the defendant is partly to blame.

Equitable tracing may be used.

There are three ways of imposing a constructive trusteeship: intermeddling, accessory liability and recipient

liability.

Wh

o?

Equity Common law

Typ

e? Personal or proprietary claim

Proprietary only No claim Restitution

Det

ails

Can be for:• Intermeddling (acting

like a trustee).• Accessory liability

(dishonest assistance).• Recipient liability

(receiving property with requisite degree of knowledge).

Same rules as two trusts:• Clean substitution: trace

through.• Mixed asset purchase:

claim a percentage.• Mixed bank account:

FIFO; adjust if unjust.Extra defence: if there is an inequitable result.

No equitable claim can be made.

(try common law)

Can only be used if the legal owner ofproperty.Strict liability.Defences:• Change of position.• Acting in good faith

for consideration.

Remedies against third parties

Constructive trustee Innocent volunteerBona fide purchaser for

value without noticeAnyone


118 Co-ownership: holding title


Severance

Severance converts a joint tenancy into a tenancy in common.

It is only possible to sever an equitable joint tenancy and not a legal one: s 36(2) LPA 1925 .

Shares held as joint tenant and tenant in common cannot be added together, although it is possible to own

both types of interest in a single property, should the circumstances cause it to happen.

Some methods occur after an individual acts alone, others require cooperation.

Once severed the interest is split into equal parts, despite any unequal purchase price contributions.

If a title is severed in unregistered land a memorandum of severance should be placed on the conveyance; in

registered land a restriction should be placed on the register.

There are four methods of severance: notice, alienation, mutual agreement/course of dealing and homicide.

Notice under s 36(2) LPA 1925

Notice must be in writing, but no signature is required (Re Draper’s Conveyance ).

The notice must show the correct intention to sever.

o There must be an immediate intention to sever.

o Stating “I am entitled to half the matrimonial home” was held to

be sufficient in Re Draper’s Conveyance.

The notice must be correctly served: s 196 LPA 1925 .

o It must be personally delivered or posted.

o Posting to the last known address is sufficient: Kinch v Bullard.

o The notice is still served if it is lost in the post.

Alienation

This is defined as a “joint tenant operating on his own share”.

This encompasses giving, selling or mortgaging their share of the property.

o The action must be in signed writing s 53(1)(c) LPA 1925 .

It also includes going bankrupt.

As ever, the legal estate cannot be severed, only the equitable estate is severed.

Mutual agreement/course of dealing

This is where the parties mutually agree to sever, or agree to deal with the land in a way which would have

the effect of severing their interest: Burgess v Rawnsley .

The agreement need not be a binding agreement.

If more than two equitable joint tenants agree to sever then everyone’s interest is severed. This is important!

A unilateral statement from one party to another will not be sufficient for mutual agreement/course of dealing

severance but may be if it meets the requirements for s 36 LPA 1925 notice, as above.

Homicide

If someone murders someone then the interest is severed to prevent the murderer benefiting from their crime

and getting the property by survivorship.

The murder takes the legal estate, holding it on trust for the victim’s estate and themselves as tenants in

common: Re K .


136 Easements


Easements

Problem questions on easements often require analysis of whether an easement exists, sometimes followed by

enforceability issues.

Structure

This structure can be used to determine whether an easement exists. It provides a framework for the notes that follow.

Express grant/reservation

Implied grant/reservation

•Must be a sale of part

•Creation via: • Necessity;

• Common intention;

• Wheeldon v Burrows

• s 62 LPA

Prescription

•Common law conditions:

•As of right;•Fee simple owner

•Continuous for requisite amount of time:

• Prescription Act

• Common law prescription

• Lost modern grant

Dominant and servient tenement

Accommodation of the dominant

tenement

Tenements have different

owners

Capable of forming the subject matter

of a grant

Creation

1. Essential Characteristics

Re EllenboroughPark


Free Movement of Goods 157


Free Movement of Goods

Other types of problem questions follow similar structures to free movement of goods and thus it pays to learn it well. It

is worth having the statute in front of you in an exam.

Structure

Follow this structure when analysing and answering free movement of goods problem questions

State measures

Article 34 TFEU prohibits quantitative restrictions on imports and measures of equivalent effect.

Article 35 TFEU does the same for exports.

For the prohibitions to apply the measure concerned must be a state measure.

Clarification on what is a state measure was given in the ‘Buy Irish’ campaign case:

o measures need not be binding; and

o the potential effect of the measure is what is important, not the actual effect.

In ‘Buy Irish’ the presence of a public subsidy and the ability of the state to appoint management in a

campaign to encourage purchases of Irish goods was sufficient involvement.

Where there is only a degree of state involvement is likely that the state aspect could be challenged.

State Measure?

Buy Irish Campaign

Quantitative restriction (QR)Measure equivalent to a

quantitative restriction (MEQR)

Distinctly applicable

Proportionality

Cassis justification

Indistinctly applicable

Sellin

g arrange

me

nt

Harm

on

isation

Arm

s de

rogatio

n

Article 36 TFEU justification


168 Freedom of Establishment and Services


Freedom of Establishment and Services

The structures for establishment and services are similar to previous structures. Use the notes below to add detail.

Structure

Is it a restrictive measure?

The freedoms of establishment and service provision apply in relation to measures which are “national

measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the

Treaty”: Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano.

Establishment v services

Under the test set out in Gebhard , services are offered on a “temporary basis” whilst establishment is on a

“stable and continuing basis”.

Services are “normally provided for remuneration” (Article 57 TFEU). Without a commercial motive there

Is it a measure?Gebhard

Establishment or services?

Establishment: Art 49 TFEU Services: 56 TFEU

Distinctly applicable

Treaty exceptions:

Art 51: Official authority.

Art 52(1): public policy/health/

security.

Justification

Gebhard

Proportionality

Indistinctly applicable

Distinctly applicableIndistinctly applicable

Treaty exceptions (via Art 62 TFEU):

Art 51: Official authority.

Art 52(1): public policy/health/

security.

Justification

Alpine Investments

Proportionality


Murder 197


Murder

Crime card

Murder

Murder is a common law offence.

The classic definition by Coke is: “the unlawful killing of a reasonable creature in being

under the Queen’s peace with malice aforethought”.

AR

The AR is killing a human (see general points on causation and human under Homicide).

MR

The MR is ‘malice aforethought’ which means specific intent as to murder or GBH.

It is therefore possible to commit murder only intending GBH.

Issues of direct and oblique intent may come into questions (see Criminal Law

Basics above).

Defences

Self-defence can provide a complete defence, although situations where the force used was reasonable would

be rare.

Insanity also provides a complete defence (McNaghten’s Case ) and is not the same as diminished

responsibility. It is likely that the defendant will however end up in a secure mental institution.

Killing a human

MurderCommon law, s 52-54 Coroners and Justice Act 2009

AR MR

Specific intent as to killing or GBH

Defences

Self defence

Insanity

Partial Defences (reduces to voluntary manslaughter)

Diminished responsibility

Loss of control


Murder 199


Loss of control

This is also a partial defence which reduces murder to voluntary manslaughter and in doing so gives the judge

sentencing discretion.

Under s 54 Coroners and Justice Act 2009 loss of self control will be established where:

o the defendants actions in relation to the killing resulted from a loss of their self-control,

o the loss of self-control had a qualifying trigger; and

o a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint in the

same circumstances might have reacted in a similar way.

Defendant’s actions resulted from a loss of self-control

This is a question of fact.

It does not include revenge: s 54(4) CJA 2009 .

The reaction need not be sudden: s 54(2) CJA 2009

The defendant must produce sufficient evidence to show that they lost their self

control (s 54(5) CJA 2009 ). The burden is then on the prosecution to disprove it

beyond reasonable doubt.

o There will be sufficient evidence if the judge thinks the jury may find the

defence could apply: s 54(6) CJA 2009 .

If one party to a killing succeeds with this partial defence it will not prevent other

parties being convicted of full murder: s 54(8) CJA 2009.

Qualifying trigger

There must be a specified qualifying trigger.

Under s 55 CJA 2009 , a qualifying trigger can be:

o a fear of violence against the defendant or a third party;

o grave circumstances caused the defendant to justifiably feel seriously wronged; or

o both of the above.

Sexual infidelity alone will not be sufficient under s 55(6)(c) CJA 2009 .

Whether the circumstances are grave and justifiable is an objective question for

the jury.

A fear of violence is a subjective question of fact.

‘Honour killings’ are unlikely to warrant this partial defence as a jury is unlikely

to consider the grounds to be grave or justifiable and it may constitute revenge,

which is excluded under s 54(4) CJA 2009.

An ‘excuse to use violence’ is not sufficient under s 55(6)(a) CJA 2009 .

A person of the same age and sex would have acted in a similar way in the circumstances

Children have lower capacities for self control.

The Act implies that men and women act differently. A woman may feel more threatened in a violent situation.


218 Accomplice Liability


Accomplice Liability

As with attempts, this can come up in conjunction with any topic. Leaving this topic out therefore carries greater risks

than other topics.

Crime card

Accomplice liability

Three elements need to be proven for accomplice liability:

1. the principal offence has to be committed;

2. the defendant aided, abetted, counselled or procured the offence; and

3. the defendant had the required MR.

Commission of the principal offence

The principal offence must be committed for an accomplice to be liable: R v Dias .

Where the principal offender is acquitted, the accomplice may still be guilty: R v Cogan and Leak .

There is no need to prove a causal link between the accomplices’ actions and the commission of an offence

(i.e. it doesn’t matter if the offence would have been committed anyway), unless

the accomplice procured the principal offence without the principal offender’s

knowledge: A-G’s Ref #1 of 1975 .

Normally, where an accomplice uses innocent agent (e.g. instructing a young child)

to commit an offence, the accomplice will be charged as the principal offender.

o This does not apply to sexual offences where they will still be charged as

an accomplice: R v Bourne.

AR

If possible the type of assistance should be established:

o ‘aid’ = to help during the principal offence;

o ‘abet’ = to encourage during the principal offence;

o ‘counsel’ = to encourage before the principal offence;

o ‘procure’ = to help bring about the principal offence.

Doing anything after the principal offence has been committed is none of these.

Procurement does not require knowledge of the principal offence (A-G’s Ref #1 of 1975).

Assistance, encouragement etc. can take a variety of forms:

o Holding a woman down during a rape: R v Clarkson.

o Attending and cheering at illegal performance: Wilcox v Jeffrey.

Aid, abet, counsel or procure the commission of an offence

Knowledge of the circumstances of the principle offence

Accomplice Liabilitys 8 Aiders and Abettors Act 1861, s 44 Magistrates Court Act 1980

AR MR

Specific intent as to the actThe principal offence must be committed


238 Remedies: Damages


Remedies: Damages

Damages come into many questions and need to be understood well.

Summary

Basis of damages

There are three different bases on which damages may be claimed in Contract.

Expectation loss

This is the most common type of claim.

The aim is to put the claimant back in the position they would have been in, had the contract been

performed: Robinson v Harman .

For goods this will usually be the difference in cost between the value of the goods supplied and expected, or

could be the ‘cost of cure’ (e.g. repair).

Damages

Expectation loss: the claimant is put back

in the position they would have been in had

the contract been performed .

Robinson v Harman

Reliance loss: the claimant is put back in the position

they would have been in had the contract not

been entered into.Anglia TV v Reed

Restitutionary damages:

the damages are not based upon the loss to the claimant.Experience Hendrix

v PPX

Consider extra rules on types of damage:Lost opportunity (claim)

Distress/disappointment (no claim)An aim was enjoyment (claim)

Consumer surplus (claim if reasonable).

Remoteness:Damages must either arise naturally from the

breach, or be in the contemplation of the parties at the time the contract was entered into.

Hadley v Baxendale

Mitigation:There is a duty to mitigate.

British Westinghouse

Contributory negligence:Only if a tort claim would also have been possible

and it would have applied there too.

Specified damages:Consider if a penalty clause

(then it cannot be relied upon, claim damages normally) or a

specified damages clause (enforceable).

Dunlop Pneumatic Tyre Co


Duress 255


Duress

Structure for ‘promises of more’ including duress

Establishing duress

Duress is defined as “the exercise of illegitimate pressure, compelling or restricting the choice for the victim,

which is a significant cause in inducing the victim to enter into a contract”: Dyson J in DSND Subsea v

Petroleum Geo-Services .

The elements to establish are:

o illegitimate pressure;

o compelling or restricting the choice for the victim; and

o the pressure was a significant cause in inducing the victim to enter into the contract.

Duress can be physical or economic duress.

The burden of proof is on the party alleging duress.

Duress can be used as a defence to the other party enforcing terms of a contract: Atlas Express v Kafco.

An existing contractual duty is not sufficient consideration for a promise to pay more

Stilk v Myrick

Performing an additional duty is sufficient consideration for a greater promise

Hartley v Ponsonby

If an additional benefit is conferred (e.g. Under another contract) by completion then

there is still considerationWilliams v Roffey

Consider whether the pressure to pay more is illigitimate by considering duress.

Define consideration

Duress(questions solely on duress start here)

Define duressDSND Subsea

Illegitimate pressureCarillion v Felix

Compelling or restricting choice for the victimL Diplock in The Universe Sentinel

Significant cause to enter into the contractBarton v Armstrong

Contract voidableOpel v Mitras

Consider affirming or rescission.Do any bars apply? Bars: affirmation, delay,

innocent 3rd party or impossibility.

Questions involving ‘promises of more’(e.g. I wont finish until I’m paid more)


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