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Employers Liability 19

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for 2011 exams

Employers 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. Safeplace of work:

The defence ofvolenti 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 oftraining;

o provision ofsupervision;

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

o pranksters where the employer knew they were a risk(e.g. theyd 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 equipmentor lack of equipment(e.g. no safety goggles)

Employees can sue their employer for defective equipmentas well as the manufacturer under

s 1 EmployersLiability (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 thephysical 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 occupiers 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

from Latimer v AEC.

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2/14

Occupiers Liability: Visitors 23


for 2011 exams

Occupiers Liability: Visitors

Occupiers liability to visitors is governed by the OccupiersLiability Act 1957.

Occupiers liability

Does the

situation fall

within the

Occupiers

Liability Act

1957?

Anoccupier

This is determined by the occupational control test: someone who has asufficient degree of controlover 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 theland: s 1(2) Occupiers Liability Act.

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

It does not include trespassers (e.g. walking past a staff only

sign or someone who hasnt paid for a ticket in a cinema).Loss dueto 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

Commonduty of

care

Duty of care

Breach of duty

Standard ofcare

The common duty of care is to take such care is reasonable in thecircumstances to see that the visitor is reasonably safe in using the premisesfor

the purpose which he is permittedto be there s 2(2).

It is directed towards the visitors safety, not the premises.

Older people or children create a higher duty of care.

Breach

Warnings

Dischargeof duty

The duty can be discharged if3 provisos are met (s 2(4)(b)):

1. The work was ofconstruction maintenance or repair;

2 . It was reasonable to engage the contractorto carry out the task; and

3. Reasonable care was taken to check the contractors workwas carried

out correctly.

A reasonable check was not carried out in Woodward v The Mayor ofHastings where they should have checked ice was c lear from the steps.

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

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

Considerfactors such as: the nature of the r isk, 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 tobe supervised: Phipps v Rochester Corp.

o Skilled claimants: can be expected to guardagainst defects relevantto 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 theparties: Smith v Eric S Bush.

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

Contributory negligence applies as normal.

Defences

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3/14

Parliamentary Supremacy 49


for 2011 exams

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 wholewheel rapidly if faced with a write everything about this topic style question.

Supremacy basics

Diceys definition

Diceys 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 bodyand can enact or repeal laws on any subject.

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

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

Diceysdefinition History and

development

of theEnrolled Act

Rule

Examples ofparliamentary

supremacy

The doctrineof express and

implied repeal

Domesticlimitation:

Acts of Union

Domesticlimitation:

DevolutionDomesticlimitation:

Acts ofindependence

Domesticlimitation:

Limits to

implied repeal

Manner andform debate:

for

Manner andform debate:

against

Europeanlimitation:

ECA 1972

Europeanlimitation:

HRA 1998

ECHR

ParliamentarySupremacy

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4/14

Creation of Trusts 75


for 2011 exams

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 legaltitle formalities

Trustsexpress pr ivate

trusts

3 certainties


Beneficiaryprinciple

Rule againstperpetuities

Administrativeunworkability

Capriciousness

Special landformalities

Dead settlor(using a will)

Gifts

Will formalities

3 certainties(intention rarely

an issue)


Trusts

Will formalities

3 certainties


Administrativeunworkability

Capriciousness

Powers ofappointment

3 certainties



Capriciousness

Rule againstperpetuities

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5/14

100 Remedies against Third Parties


for 2011 exams

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 proprietaryclaim 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 liabilityand recipient

liability.

Who?

Equity Common law

Type?

Personal or proprietary

claimProprietary only No claim Restitution

Details

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 of

property.

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

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6/14

118 Co-ownership: holding title


for 2011 exams

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 arefour 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 Drapers 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 Drapers 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 writings 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 dealwith 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 everyones 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 trustfor the victims estate and themselves as tenants in

common: Re K.

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7/14

136 Easements


for 2011 exams

Easements

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

enforceability issues.

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

Expressgrant/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 andservient tenement

Accommodationof the dominant

tenement

Tenementshave different

owners

Capable of formingthe subject matter

of a grant

Creation

1. EssentialCharacteristics

Re EllenboroughPark

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8/14

Free Movement of Goods 157


for 2011 exams

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.

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

State measures

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

Article 35 TFEUdoes 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 BuyIrish 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 BuyIrish 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

Cassisjustification

Indistinctly applicable

Sellingarrangement

Harmonisation

Armsderogation

Article 36 TFEUjustification

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9/14

168 Freedom of Establishment and Services


for 2011 exams

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 dellOrdine degli Avvocati e Procuratori di Milano.

Establishment v services

Under the test set out in Gebhard, servicesare offered on a temporary basis whilst establishmentis on astable and continuing basis.

Servicesare 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: Officialauthority.

Art 52(1): public

policy/health/

security.

Justification

Gebhard

Proportionality

Indistinctlyapplicable

Distinctly applicableIndistinctly

applicable

Treaty exceptions

(via Art 62 TFEU):Art 51: Official

authority.

Art 52(1): public

policy/health/

security.

Justification

Alpine Investments

Proportionality

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10/14

Murder 197


for 2011 exams

Murder

Crime card

Murder

Murder is a common law offence.

The classic definition by Cokeis: the unlawful killing of a reasonable creature in being

under the Queens peace with malice aforethought.

AR

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

MR

The MRis 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 (McNaghtens 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

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11/14

Murder 199


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Loss of control

This is also apartial defence which reduces murder to voluntary manslaughterand 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 defendants sex and age, with a normal degree of tolerance and self-restraintin thesame circumstancesmight have reacted in a similar way.

Defendants 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 afear of violence against the defendant or a third party;

o grave circumstances caused the defendant tojustifiably 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

thejury.

A fear of violence is a subjective question offact.

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 isnot 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.

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12/14

218 Accomplice Liability


for 2011 exams

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. theprincipal 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

Theprincipal offence must be committedfor 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 linkbetween the accomplices actions and the commission of an offence

(i.e. it doesnt matter if the offence would have been committed anyway), unless

the accomplice procured the principal offence without the principal offenders

knowledge: A-Gs 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 aboutthe 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-Gs 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 theprinciple 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

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13/14

238 Remedies: Damages


for 2011 exams

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 costbetween 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

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14/14

Duress 255


f

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 inDSND 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 proofis 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 moreStilk 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 consideration

Williams v Roffey

Consider whether the pressure to pay more

is illigitimate by considering duress.

Define consideration

Duress

(questions solely on duress start here)

Define duress

DSND Subsea

Illegitimate pressure

Carillion v Felix

Compelling or restricting choice for the victim

L Diplock in The Universe Sentinel

Significant cause to enter into the contract

Barton v Armstrong

Contract voidable

Opel 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 Im paid more)

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