Employer’s Liability 19

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.
Cattle
1. Competent staff
And
2. Adequate plant and equipment from Wilsons & Clyde Coal Ltd v
3. Safe system of work Sheep
English .
4. Safe place of work: from Latimer v AEC . Pen
 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.

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 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
•This is determined by the occupational control test: “someone who has a
sufficient degree of control over the premises”: Wheat v Lacon.
An •There can be multiple occupiers.
occupier •An occupier could be a contractor.
Does the
situation fall •This is anyone with express or implied permission to be on the
land: s 1(2) Occupier’s Liability Act.
within the
A visitor •It includes people entering under terms of a contract: s 5(1) , and
Occupier’s people exercising a right by law s 2(6) .
Liability Act •It does not include trespassers (e.g. walking past a ‘staff only’
1957? sign or someone who hasn’t paid for a ticket in a cinema).
Loss due
to state •Loss suffered by the visitor must be caused by the state of the premises.
of the •Premises include moveable structures such as aircraft: s 1(3)(a).
premises
•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).
Common
•It is directed towards the visitor’s safety, not the premises.
duty of
care •Older people or children create a higher duty of care.

Duty of care •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.
Discharge •A reasonable check was not carried out in Woodward v The Mayor of
of duty 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.

Standard of •Consider factors such as: the nature of the risk, the purpose of the visit,
care 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
Breach of duty be supervised: Phipps v Rochester Corp.
Breach 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.
Warnings •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’).

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

•Volenti applies: s 2(5).

Causation
•“All visitors enter at their own risk” is not specific enough for volenti.
Causation •Liability can be excluded if there is a clearly worded notice, covering
and defences 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
Defences parties: Smith v Eric S Bush.
•Personal injury and death cannot be excluded: s 2(1) UCTA 1977.
•Contributory negligence applies as normal.

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 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.

Dicey’s
European definition History and
limitation: development
of the
HRA 1998
Enrolled Act
ECHR Rule

European Examples of
limitation: parliamentary
ECA 1972 supremacy

Manner and The doctrine

form debate: Parliamentary of express and
against Supremacy implied repeal

Manner and Domestic

form debate: limitation:
for Acts of Union

Domestic
Domestic
limitation:
limitation:
Limits to Domestic
limitation: Devolution
implied repeal
Acts of
independence

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.
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 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.

Powers of
Gifts and trusts
appointment

Dead settlor
Living settlor
(using a will)

Trusts
Gifts ‘express private Gifts Trusts
trusts’

Mental capacity Will formalities Will formalities

3 certainties 3 certainties
(object and subject 3 certainties (intention rarely 3 certainties 3 certainties
rarely an issue) an issue)

Transfer of legal Transfer of legal Transfer of legal

title formalities title formalities title formalities

Beneficiary Beneficiary Beneficiary Beneficiary

principle principle principle principle

Rule against Rule against

perpetuities perpetuities

Administrative Administrative
unworkability unworkability

Capriciousness Capriciousness Capriciousness

Special land
formalities

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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.

Remedies against third parties

Equity Common law

Who?

Bona fide purchaser for

Constructive trustee Innocent volunteer Anyone
value without notice
Type?

Personal or proprietary
Proprietary only No claim Restitution
claim

Can be for: Same rules as two trusts:

Can only be used if
• Intermeddling (acting • Clean substitution: trace
the legal owner of
like a trustee). through.
No equitable claim property.
Details

• Accessory liability • Mixed asset purchase:

can be made. Strict liability.
(dishonest assistance). claim a percentage.
Defences:
• Recipient liability • Mixed bank account:
(try common law) • Change of position.
(receiving property with FIFO; adjust if unjust.
• Acting in good faith
requisite degree of Extra defence: if there is
for consideration.
knowledge). an inequitable result.

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.

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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 .

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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.

Dominant and Accommodation

servient tenement of the dominant
tenement
1. Essential
Characteristics
Re Ellenborough
Park

Capable of forming Tenements

the subject matter have different
of a grant owners

Prescription
•Common law conditions:
•As of right;
Express •Fee simple owner
grant/reservation Creation •Continuous for requisite amount
of time:
• Prescription Act
• Common law prescription
• Lost modern grant

Implied grant/reservation
•Must be a sale of part
•Creation via:
• Necessity;
• Common intention;
• Wheeldon v Burrows
• s 62 LPA

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 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 Measure?
Buy Irish Campaign

Measure equivalent to a

Selling arrangement
Quantitative restriction (QR)

Arms derogation
quantitative restriction (MEQR)

Harmonisation
Distinctly applicable Indistinctly applicable

Article 36 TFEU justification Cassis justification

Proportionality

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.

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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 measure?
Gebhard

Establishment or
services?

Establishment: Art 49 TFEU Services: 56 TFEU

Indistinctly Indistinctly
Distinctly applicable Distinctly applicable
applicable applicable

Treaty exceptions
Treaty exceptions:
(via Art 62 TFEU):
Art 51: Official
Justification Art 51: Official Justification
authority.
authority.
Art 52(1): public Gebhard Alpine Investments
Art 52(1): public
policy/health/
policy/health/
security.
security.

Proportionality Proportionality

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

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 Murder 197

Murder

Crime card

Murder
Common law, s 52-54 Coroners and Justice Act 2009

AR MR
Killing a human Specific intent as to killing or GBH

Defences Partial Defences

(reduces to voluntary manslaughter)

Self defence Diminished responsibility

Insanity Loss of control

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.

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 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.

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

AR MR
The principal offence must be Specific intent as to the act
committed
Knowledge of the circumstances of the
Aid, abet, counsel or procure the principle offence
commission of an offence

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.
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238 Remedies: Damages

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

Summary

Damages

Expectation loss: Reliance loss: Restitutionary Specified damages:

the claimant is put back the claimant is put damages: Consider if a penalty clause
in the position they back in the position the damages are (then it cannot be relied upon,
would have been in had they would have been not based upon the claim damages normally) or a
the contract been in had the contract not loss to the claimant. specified damages clause
performed . been entered into. Experience Hendrix (enforceable).
Robinson v Harman Anglia TV v Reed v PPX Dunlop Pneumatic Tyre Co

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.

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).
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 Duress 255

Duress

Structure for ‘promises of more’ including duress

Questions involving ‘promises of more’ Duress

(e.g. I wont finish until I’m paid more) (questions solely on duress start here)

Define duress
Define consideration
DSND Subsea

An existing contractual duty is not sufficient Illegitimate pressure

consideration for a promise to pay more Carillion v Felix
Stilk v Myrick

Compelling or restricting choice for the victim

Performing an additional duty is sufficient L Diplock in The Universe Sentinel
consideration for a greater promise
Hartley v Ponsonby
Significant cause to enter into the contract
Barton v Armstrong
If an additional benefit is conferred (e.g.
Under another contract) by completion then
there is still consideration
Williams v Roffey Contract voidable
Opel v Mitras

Consider whether the pressure to pay more

is illigitimate by considering duress. Consider affirming or rescission.
Do any bars apply? Bars: affirmation, delay,
innocent 3rd party or impossibility.

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.

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