1
Q
Bukton v Tounesende (1348)
A
- Trespass on the case, a ferry man who agreed to transport horses from one side of the river to the other. He overloaded, the ferry sank, and the horses drowned. The question was about the damages, who was liable. The owner of the sheep wanted damages, but there was a problem at the court of common pleas. It was a covenant and had to ask for a writ of covenant, but the court had decided not to accept if there was no deed of covenant. So he didnt ask for covenant but for a writ of trespass. Strange in this case, because trespass doesnt succeed certain deals made. So trespass law was used to enforce covenant law.
o In other words, a tort complaint can be used to enforce a covenant, instead of only covenant law accepted.
2
Q
Earl of Oxford case (1615)
A
- Magdalene college challenged the Earl of Oxford his title to the land he bought based on the prohibition of the sale of college lands, even though they sold it to him. The Earl of Oxford was convicted and would not have adequate compensation under common law for breaching a statute. However, under equity he would. This led to the decision that in a conflict between common law and equity, equity would prevail.
o Facts are complicated, most important is the hierarchy between common law and equity.
3
Q
Priestley v Fowler (1837)
A
Court decided if an employee mishandles a machine, he has to pay for damages himself if he’s injured. Because the person who works with the machine knows the machine best. The problem with this is that this decision became difficult to overturn because of a binding precedent in the English legal system.
o This case showcases the inflexibility of the precedence system, in which it is difficult to overrule precedent (stare decisis)
4
Q
Inland revenue commissioners v Hincy, AC 748 (1960)
A
- Hinchy had forgotten to mention income and paid too little tax and committed tax fraud. The statute that stated the penalty, You will have to pay treble the tax. The judge took the wording as the intention of parliament so three times the tax and not just the difference.
o This shows that judges interpret the statutes literally, not teleological.
5
Q
Fisher v Bell, 1 QB 395 (1961)
A
- Shopkeeper displayed a knife and the question was if this was an offer or not. He was prosecuted for having ‘on offer’ a knife which was not allowed. The statute describing the offense named a knife on offer. Shopkeeper didnt have it on offer, and it means in English law that the offer was only an invitation to negotiate. In addition, the buyer makes the offer to buy it at the counter.
o This case shows again, literal interpretation of a statute and the interpretation of when something can be considered on offer and who makes the offer.
6
Q
NB: National society v Scottish society (1915)
A
- Deceased man had left his belongings to the national society, whether he meant the English one or Scottish one was not clear. Judge said we have to follow the words of the person literally and cannot infer other words than used by the deceased so the national society in a will went to England and not to Scotland.
o Again important to understand that words are used in a literal sense in the English legal system.
7
Q
R(ex/egina) v Allen (1872)
A
- Make it possible to look at the purpose of the statute in society and not dogmatically and grammatically. In this case, the statue included the word ‘marry’, this ought to be seen as ‘going through the ceremonial process of marriage’, since no one would be able to actually marry if bigamy was prohibited.
o This shows the golden rule, which in essence modifies the literal rule to make sense in society.
8
Q
Authority: Heydon’s case (1584)
A
- First case to introduce the mischief rule for statutory interpretation, to remedy the mischief that is present in the statue. Heydon’s case developed four points to be taken into consideration
o What was the common law before making the act
o What was the mischief and defect for which the common law did not provide
o What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth
Fourthly: the judges to make such a construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief.
9
Q
Corkery v Carpenter (1951)
A
- was charged for bicycling drunk. Was able to be convicted on being drunk ‘in charge of a carriage. This is exceptional.
o This is where the mischief rule is used in practice; where it was held that carriage could also include bicycle.
10
Q
Smith v Hughes (1960):
A
- soliciting from a balcony and illegal for prostitution soliciting from public space. Because the effect went into public space.
o Again use of mischief rule, holding that activities of the defendant could fall under public space, because it could be seen from public, even if they occurred in a private place. In a literal reading this would not be possible.
11
Q
Pinnel’s case (1602)
A
- The defendant, Cole, owed the plaintiff, Pinnel, the sum of £8 10s. Pinnel sued Cole for recovery of the debt. Cole had, at Pinnel’s request, paid £5 2s 6d one month before the debt was due to be paid and stated that they had an agreement that this part payment would discharge the entire debt.
o This retroactively became the rule for consideration since the judges held:
The court confirmed the general rule that part payment of a debt cannot be satisfaction for the whole. However, since the payment had been made early this was sufficient to discharge he debt. Therefore, by paying some money early the defendant had provided the plaintiff with a further benefit and had not just repaid the money which he already owed. Consequently, this was good consideration, and the court found for the defendant.
12
Q
Humblin v Field (2000)
A
- Parties appearing in court should resist the temptation to quote too many cases. Where the reference was to a summary, and where it was not clear that the words in the summary were those of the judge or of a reporting practitioner, particular care must be taken, and such summaries should not be used in court.
13
Q
London street tramways v London county council, AC 375 (1898
A
- This ruling implement the stare decisis rule. If a case has been decided and was not founded on a mistake of fact, the House of lords is not component to reargue a question which already has been decided. (Lord Halsbury).
o This means that its own precedents bind the house of lords.
14
Q
Young v Bristol Aeroplane (1944):
A
- Case that founded that the court of appeals was bound by their own decisions except when:
o Two decisions conflict, in this case, it is at the court its discretion to decide which rule will be followed.
o The court is bound to refuse to follow a decisions of its own if it cannot stand with a decision of the House of Lords
o The court is not bound to follow a decision of its own if the decision was given per incuriam (literally through lack of care, for example not including a relevant statute in the ruling).
15
Q
Froom v Butcher (1976)
A
- Contributory negligence; The plaintiff was not wearing a seatbelt whilst driving because he did not like seatbelts and because he had seen drivers being trapped after a crash because they wore a seatbelt. After a crash, the plaintiff suffered head and chest injuries and a broken finger. Had he worn his seatbelt, the head and chest injuries would have been avoided. The crash was entirely the defendant’s fault. The defendant contended that the plaintiff was guilty of contributory negligence. The Queen’s Bench held in favour of the plaintiff on grounds that there was no statutory compulsion to wear a seatbelt at the time. The defendant appealed. Appeal was allowed
o Determining whether on is guilty of contributory negligence is a matter of the damage, not cause
o Plaintiffs injuries, except broken finger, were caused by his failure to wear a seatbelt and was therefore guilty of contributory negligence.
So if you contribute to your own accident, you cannot claim damages on the other party, for damage you could have avoided yourself.
16
Q
England v Cowley (1873), Oakley v Lyster (1931)
A
- Case example of distinguishing on the facts even though both were on conversion (land) (then the precedent is not binding):
In both cases about property on the land there were objects that did not belong to seller of the land so also not the buyer. The owner of the objects, the buyer refused to remove the objects. This was allowed. So conversion was granted. And could take property. The owner of the land was the owner of the land and also of the objects. Here conversion was not granted, not really physical appropriation of the objects.
o However in Oakly v Lyster, the same argument was not used, conversion was granted here and therefore England v Cowley was not used as precedent. So two cases with the same cases are decided differently because of reasoning.
This means that there is no binding precedent in case the plaintiff or defendant argues a similar case on different arguments.
17
Q
Household fire insurance company v Grant (1879):
A
- concluding a contract by distance, by mail. When was the offer accepted? When someone has put a letter in the mail box, this is when it was decided that the offer was accepted.
o This means that an agreement and the principle of law is established when acceptance is effective, in this case the acceptance of buying shares in a company by posting a letter. That the letter was never received, does not hinder the establishment of the agreement.
18
Q
Rondel v Worsley (HoL 1969)
A
- The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence. The HoL held that barristers should be considered immune from negligence in court, since making assertions of liability against barristers might undermine the willingness of barristers to carry out their duties to the court.
19
Q
Hedley Byrne & co. Ltd v Heller & partners (1964)
A
- Bank was brought before the court because they sold an investment that was not very good. Therefore, the defendant claimed damages. The bank was liable but still, they were not convicted to pay it, because they had a disclaimer. The ratio decidendi, in principle the bank is liable but not applied because of the disclaimer to the general rule. Resulted in the fact that the RD was not binding. Is only binding if used as the basis for the outcome
20
Q
R v Howe (1987), R v Gotts (1992)
A
- Obiter dicta ‘ripening into’ ratio decidendi.
criminal case where defendant was prosecuted for murder. Defense out of necessity killed. Under enormous stress etc. The judges took a fundamental decision; duress can never be a defense against murder. Your life is never worth more than that of another. That would be the case if you were under enormous stress, and attempted murder but not actually killed someone. Not RD, because R.v Howe was about actual murder. - In R v Gotts (father told boy to kill mom or he would be shot himself, mother survived) this was used because of duress used as a defense and because of the notes in R v Howe. There was said that in attempted murder, duress could not stand because judges were persuaded. Furthermore, attempted murder can only be established where there is an intention to kill.
21
Q
R v Jordan (div. crt 1967)
A
- Appeal against race relations act of 1965, on the grounds that this was an infringement on freedom of speech. Judges were unwilling to question validity of the act.
o This concept crystalizes parliamentary sovereignty, that parliament can make rules and statutes about whichever topic they please. - Judges are not allowed to rule if Acts of Parliament are compatible with principles of natural law
22
Q
Factortame I & II (HL 1990, 1991)
A
- House of Lords made a reference to the ECJ on the legalitiy of the merchant shipping act of 1988. (factortame I), This was a sign of confirmation of EU law primacy. Factortame II was where the ECJ held that the provisions of the MCA or any act would have to be disapplied if they contravened with EU law.
o This is irrelevant since Brexit.
23
Q
Madzimbamuto v Lardner-Burke (PC 1968)
A
- Madzimbamuto was detained during the Rhodesian revolutionary. Was detained based on the Rhodesian constitution, adopted by the revolutionaries. His wife went to the Privy Council in order to get the detention undone. British parliament had adopted an act, declaring the Rhodesian constitution null and void. Is the British parliament allowed to do this? The Privy Council had to follow the act of parliament or declare it void. The privy council followed the parliamentary sovereignty and that parliament could decide anything and declare any constitution null and void, so also that of Rhodesia. And the judges were not allowed to test that act of parliament. They had to follow it and the constitution had to be treated as null and void and the detention was declared illegitimate
o This again underlines parliamentary sovereignty from the UK
24
Q
Ellen Street Estates LTD v The minister of Health (CA 1934) 1 KB 590
A
- A man who had to forcibly sell his land. And the question was, what kind of compensation he would get. Two possible statues
o act of 1919 (acquisition of land) this was preferred for the seller, because it would give him more
o housing act 1925, newer rule and surpassed in principle the previous act. Lex posterior rule. The issue was that the act of 1919 had a clause that all acts or orders shall have effect according to that act. The argument for the seller was that the housing act qualified under the act of 1919. And that the idea was of 1919, to bind parliament in the future.
This is impossible, this case shows that parliament is sovereign but it cannot bind its successor, this body is always allowed to change
25
Thoburn v Sunderland City Council (2002) 4 all ER 156:
- Thoburn wanted to sell bananas by the pound and not kg. Wanted to use the imperial system. Britain adopted the ECA (European community act 1972), with the Henry VIII clause, allowed the minister to harmonize to change the imperial system and turn it into the metric system. This would circumvent parliament
Weights and measures act was adopted in 1985. Had a clause stipulating parity of imperial and metric system. Parity of pound and kg, from that moment both could be used.
Statutory instrument of 1994, outlawed the use of pound and only kg could be used, using the Henry VIII clause.
Thoburn his argument was that the govt used the VIII clause and was implicitly revoked by government by the weights and measures act in 1985. The newer act prevails over an older act. But the judges found that in principle Thoburn is right but the ECA is not an ordinary statute but one of constitutional nature and can only be revoked explicitly. Implicitly does not count with constitutional statutory clause.
o This leads to the rule that statutes can be revoked implicitly, unless they are constitutional statutes, then they can only be revoked explicitly.
26
Edinburgh & Dalkeith railway v Wauchope (HL 1842):
- The case revolves around a railway that was built by through a private land owner’s property (Wauchope). The railway was built under the power of a private act of Parliament – it gave the builders right of way through private property, and also provided for a ‘compensatory’ scheme of levies on the freight using the railway. The provision for the levy did not contain a fixed sum for carriages containing passengers, however there was provision for the levy concerning tonnage of goods. For several years Wauchope was paid levy sums concerned with the tonnage of goods passing on the railway, but nothing for those carrying passengers.
o On appeal, the Lords found for Wauchope. It was held that the contrary provisions in the second Act could not apply as they had not been communicated to him – specific to this being a Private act of Parliament. However it was also noted that wherever an Act has been properly enacted by Parliament, it’s the duty of the courts to interpret it as representing the will of Parliament.
This means that if parliament adopts private acts, but does not communicate them properly, it cannot be applied. If this is however done properly, the court can only follow it as representing the will of parliament (parliamentary sovereignty).
27
Inland revenue commissioners v National federation of self-employed and small businesses (HL 1981)
- The NFSE a group of taxpayers, claimed that levying tax on casual wages for fleet street newspaper staff was unlawful. Employees had given fictious names to evade tax, and the IRC agreed on a tax collection scheme, and not investigate the previous years. The NFSE argued the scheme was unlawful and never got the favour they asked for.
o Locus standi (interest sufficient) wasnt granted here because it was said that the national federation of self employed had not enough interest to appeal
This means that a case has to be of enough interest before even judged on its merits.
28
A-G v Fulham Corporation (CH 1921)
- Under the baths and washhouses act of 1846, the Fulham corporation operated 60 throughs where people could bring their laundry with their own soap. This changed in 1920, where customers had to pay for a bag to put their clothes in and then give it to the corporation, bringing it of their own control. The legality of the new 1920 scheme was challenged on an ultra vires basis.
o Above all, the court held that the Corporation had gone beyond its statutory duty in that it was subsidising its operations with the ratepayers’ money. Therefore, the court granted injunction. ‘That is an instance… in which operations are conducted by persons who have not their own pockets to consider, but who have behind them what they regard as the unlimited or nearly unlimited purse of the ratepayers.’ There was breach of a fiduciary duty.
A corporation cannot go beyond its duties, otherwise it is acting ultra vires and will be recalled by the courts.
29
Dimes v Grand junction canal (HL 1852)
- Judges deciding on the case also had shares in the junction canal company. Since this is an infringement of the impartiality of the judges, a case like this cannot stand. Judges have to be removed from the bench, in case of partiality.
30
Associated provincial picture houses v Wednesbury corporation (1948)
- APPH was granted a license by Wednesbury to operate a cinema, where no kids under 15 were allowed on Sunday. Cinemas could be open from Mondays to Saturdays and not on Sundays. This changed in 1932, where opening cinemas could be opened on Sunday on conditions the local authority may think to impose. APPH challenged the condition Wednesbury that no kids were allowed on Sunday and outside of the power of the corporation to impose.
o Court held that for the court to adopt any remedies against decisions of public bodies, it would have to find that the decisions maker:
Has given undue relevance to facts that in reality lacked the relevance for being considered in the decisions making process.
Had not given relevance to facts that were relevant and worthy of being considered in the decision-making process
Had made a decisions that was completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it
o In this case the court ruled that the corporations conduct was not inappropriate, and complied with standards.
• These are the rules laid out when a regulation may be considered unreasonable.
31
The countess of Rutland’s case (1604) 77 ER 89 (90)
- It would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory.
o The laying out of (the parol evidence rule and) an estoppel principle; which prevents someone from arguing or asserting a right that contradicts what they previously said or agreed to by law
- The Countess wanted to use the oral testimony of trustees to the documents to prove that her late husband really meant to give the property to her at his death
32
Carlill v Carbolic smoke ball co (1893)
- 100 Pounds to anyone contracting influenza after use of smoke ball.
Carlill bought a smoke ball and caught influenza after the use of it. And then went to the company and claimed the 100 Pounds. Company refused to give the money because used in a negligent way etc. In the end the company claimed that an offer has to be offered to a specific person.
o Court decided there was an offer at large to the world to sell the smoke balls. There were no rules about false marketing. So court decided there was a contract here
33
Harris v Nickerson (1873)
- advertisement: auction sale of office furniture at Bury St. Edmunds; Harris traveled from London; furniture withdrawn from sale. He sued the auction claiming there was on offer and planning to accept and the offerer cannot withdraw it. If this cannot stand, there is a claim of damages and wanted his expenses paid by the defendant.
o Court said this is not an offer but merely a declaration to inform potential purchasers that the sale was taking place. the bid is the offer in this case which is made by the potential purchaser and the bid can be accepted by the auctioneer. Then the offer made by the bidder is accepted. The auctioneer can also conclude that the bid is not accepted.
34
Pharmaceutical society of Great Britain v Boots cash chemists (southern) ltd (1953)
- Pharmaceutical products could only be sold when a licensed pharmacist was present when selling the articles. The government had offices to check if the regulations were met. There government officials found that products could be found in the store which could be accepted before you reach the cashier/pharmacist which would be accepted when payment is taken. This analysis was supported by the fact that the customer would have been free to return any of the items to the shelves before a payment had been made
o Court decided the price of a product in a store does not constitute an offer, but merely a statement of price. The offer is putting it on the counter. It is merely an invitation to treat
35
Harvey v Facey (1893)
- lowest price for Bumper Hall pen for 900 pounds via telegram communicated. Was this an offer? It was accepted and the defendant said it was merely an invitation to treat. To invite to negotiate. No contract had been concluded .
o court held that there was no contract held, it only could be concluded when the offer was accepted and the contract would have been concluded.
36
Currie v Misa (1875) LR 10 Ex 153:
- Lizardi & Co. sold a number of bills of exchange to Mr. Misa, drawn from a banking firm owned by Mr. Currie, and were to be paid on the next day. However, Lizardi was in substantial debt to Mr. Currie’s bank and was being pressed for payment. A few days later, upon paying in the cheque, Mr. Mirsa learned of Lizardi’s stopped payments and outstanding debts, instructing his bankers not to honour the cheque. The question arose as to whether the cheque was payable, particularly as to whether the sale of an existing debt formed sufficient consideration for a negotiable security, so as to render the creditor to whom it was paid, Mr. Currie, a holder for the value of the cheque.
o This led to the court holding that consideration should be: some right, interest, profit or benefit accruing to one party (promisor), or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other party (promisee). The pre-existing debt did not in and of itself form a sufficient consideration for the negotiable security. Accordingly, there was an absence of any consideration or the making or payment of the cheque by Mr. Misa.
37
Dunlop v Selfridge (1915) AC 847
- Lord Dunedin
o an act of forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable. --> so the promise has to be of value.
- In between company (D) and retailer (Selfridge) there was a dealer, with whom Selfridge had a contract not to sell the tires below 5 pounds because that is what D wanted down the whole chain. When Selfridge did, it was sued damages from Dunlop. Does Dunlop have the right to access damages without a contractual relationship? --> No, not a party to the contract so not possible.
38
White v Bluett (1853)
- A father sued his son, if the son would stop fighting with his father, the father wouldnt sue on the promissory note. The father sued anyway. The son claimed there was a promise from the son, to not complain, in return for his promise not to sue. Thats a contract. Hes bound by it.
o Court rejected it because it has no value, it needs value not adequate value. But there has to be some value in the contract.
39
Collins v Godefroy (1831)
- 6 guineas for promise to testify, Collins testified but Godefroy didnt pay.
o Promise to do something which you are already bound to do under general law. If you are a witness, you are bound to appear, and can even be held in contempt of court. So the promise to testify was not sufficient consideration. So Collins could not claim the amount in court. --> has to be sufficient, cannot constitute a duty you already have.
40
Glasbrooks bros v Glamorgan County Council (125)
- Company feared that miners would go on strike so requested that the police would keep an eye on it. After the police showed up, the county council sued the collary for payment of the police. Was this good consideration? Not just doing their public duty (Glassbrooks argument).
o Court held that if law enforcement exceeds public duty, the police are not there to stand as guards over a mine. So they exceeded their public duty and by doing so, they provided sufficient consideration to be seen as consideration. So the police can sue for costs if they exceed their public duty.
41
Perera v Vandiyar (1953)
- A landlord wanted to evict a tenant and cut off gas and electricity from the house. Family that lived there, went after the owner of the property. This was a matter of contract law and the could go after the landlord but wanted something extra. Exemplary (punitive) damages. So not just awarded the real damages but also a sum which is meant to deter tort feasors from ever committing tort again. The court didnt go with the claim and didnt create tort of eviction
42
Hargreaves v Bretherton (1958), affirmed in Roy v Prior (1969):
- Witness perjured himself but the victim wanted damages paid and punitive damages for the perjury. The court denied it. Perjury is a criminal offense and the court decided that this was enough and no tort was needed here.
43
Rookes v Barnard (1964):
- Union threatened to strike if a non-member was not fired. He got fired by the company and the employer got intimidated by the union in the process. So the court created a tort of intimidation. but exemplary damages werent awarded.
o There are a few instances when damages are awarded this happens when:
damages are awarded with unconstitutional conduct by servants of state in the tort.
tort feasors that have calculated a favourable risk assessment, how much will it make me and how much I will have to pay. So risk assessment financially.
and cases where statute allows it.
44
Rylands v Fletcher (1868):
- The defendants employed independent contractors to construct a reservoir on their land. The contractors found disused mines when digging but failed to seal them properly. They filled the reservoir with water. As a result, water flooded through the mineshafts into the plaintiff’s mines on the adjoining property. The plaintiff secured a verdict at Liverpool Assizes. The Court of Exchequer Chamber held the defendant liable and the House of Lords affirmed their decision.
It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer Chamber, and the House of Lords, that to succeed in this tort the claimant must show:
- That the defendant brought something onto his land;
- That the defendant made a “non-natural use” of his land (per Lord Cairns, LC);
- The thing was something likely to do mischief if it escaped;
- The thing did escape and cause damage.
o New requirement according to the House of Lords that harm of the relevant type must have been foreseeable.
45
Donoghue v Stevenson (1932):
- mrs May Donoghue (born McAllister), went with a friend to the wellmeadow cafe. She ordered a bottle of ginger ale with ice cream, when she did so, she saw that from the bottle there was a snail in the bottle in state of decomposition. She wanted claims against the bottle manufacturer. She couldn’t sue the pub because her friend had ordered, not her. In scotland there was judgement of no basis of tort
o House of lords: you must take reasonable care to avoid acts of omissions which you can reasonably foresee would be likely to injure your neighbour.
o Who, then, in law is my neighbour?
The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. (no jury in this case so broad definition and duty of care).
• This is the first mention of the negligence principle, and that a supplier has to be careful to not damage his neighbor (closest consumer)
46
Blyth v Birmingham Waterworks (1856):
- Defendants had installed water mains along the street with hydrants located at various points. One of the hydrants across from Plaintiff’s house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. Plaintiff sued for negligence.
o Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take. A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence. No evidence was entered showing any acts or failures to act on the part of Defendants such as could comprise negligence.
This is illustrated by Baron Alderson, that one ought to act as a reasonable man. Seen as the man on the Clapham omnibus as a representation of the reasonable man
47
MacPherson v Buick motor co. (NY state, 1916)
- If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, manufacturer of this thing of danger is under duty to make it carefully. That is as far as we need to go for the decision of this case if he is negligent, where danger is to be foreseen, a liability will follow (reasoning by Benjamin Cardozo).
o This was about a car where the steering wheel broke off.
Convinced law lord Macmillan. And made the up the majority of the case in Donoghue v Stevenson.
48
Bolton v Stone (1951):
- Cricket was being played, someone walked near the cricket fields and the ball ended up outside the field and hit the person walking by. The person sued the cricketclub, and the court had to decided it is foreseeable. The court denied the foreseeability of this, so the claim was denied
o This introduces the rule of no nuisance, no negligence, if it is absolutely not foreseeable this happens that this cannot be reasonably attributed to the causer.
49
Hilder v Associated Portland Cement Manufacturers (1961):
- Children under the age of 10, were playing near the factory of the defendant. There was a small patch of grass near the road. And kids were playing football over there. The ball went down the road and someone on a motorcycle was hit by a ball rolling into the street and died. The relatives sued the company, that they shouldve prevented the children playing there. The court agreed with this, that the factory had to prevent this accident from happening.
o difference in cases, was the size of balls, the vincinity of the road to the field. In second case much closer. so it was different in this case.
50
Hedley Bryne v Heller (1964)
- Plaintiff was an advertisement agent and customer asked them to make ads in newspapers. Before they agreed to do so they wanted a second opinion about trustworthiness of their client. They asked their own bank to talk to the bank of the client to see if he was good for his money. The bank said he was good. Passed on and then the company went ahead with this client. And he turned out broke and the advice of the bank was a misstatement and the bank should’ve known. This misstatement led to a large amount of money being lost. This is the result of misstatements and then losing money. So in this case there is a negligent misstatement and a claim. Since 1964 possible to make a claim of negligence when words are misleading and lead to loss of financial means
o This means that simple words can lead to negligence, this is then called a negligent misstatement.
51
Spartan steel & Alloys ltd v Martin & Co (1973):
- Steel was being made by a factory and the supply of electricity was cut off doing some digging in the ground. The company claimed damages because they couldnt produce anything for 15 hours. That could not be claimed the court decided. The steel in ovens was economic loss because of damaged products. So this was awarded under property damages.
o drawn a line here because otherwise no end to liability, the so-called floodgates argument. The floodgates argument was introduced by Cardozo in Ultramares corp. v Touche (1931).
52
The Wagon Mound no 1 (1961)
- it was about the wagon mound which spilled some oil in Sydney harbor, which floated in the harbor and another ship in the vicinity was welding. When sparks end up on oil floating in water, nothing happens. But here there were also pieces of cotton on top of oil on water, then everything would be set on fire, and this happened. A large part of the harbour went up in flames and they wanted to sue the shipowner who spilled the oil.
o could it have been foreseen? The court held that the ship could not have foreseen that at that moment at that place pieces of cotton would be floating in the harbor. That means we have a double forseeablity test.
the test if there is breach of duty of care and if the damage has been caused by the duty of care which is not too remote and which is foreseeable
53
Lamb v Camden council (1981)
- The defendant council negligently fractured a water pipe outside the claimant's house. This caused extensive damage and the property had to be vacated. One year later the council had not undertaken the repairs. Squatters had also moved in and caused further damage. The claimant arranged for repairs to be done herself and submitted a bill to the council for the repairs and damage caused by the squatters.
o The local authority was not liable for the acts of the squatters. It was not foreseeable that squatters would move into an empty house in Camden and cause damage despite the prevalence of such behaviour in Camden at the time.
This the foreseeability test in practice. Duty, remoteness and causation are all devices by which the courts limit the range of the liability for negligence.
54
R v Instan (1893)
- Niece didnt take care of her aunt and she died, and because she had, as family a duty to help and didnt do it she could be held criminally liable.
55
R v Pittwood (1902)
- Had to look after a railway crossing, didnt do it and accidents happened because he neglected his duty. Because of neglect of his own employment duties (contractual duty), could be held criminally liable.
56
R v Miller (1983)
- MIller smoked and a bed was set on fire. He didnt prevent the fire from doing damage or worse, he was held liable. So if you cause a dangerous incident, you must stop it from escalating, if not done so you can be held liable criminally.
57
Hale (1682)
- If you are made to shoot someone else physically, you cannot be held liable, this is called physical coercion. So no voluntary act.
58
Hill v Baxter (1958)
- Invoking instinct is only succesful if for example a swarm of bees is in your car and then your actions in a car are not voluntary. So only when instinct takes over all voluntary handling, instinct as a defense is accepted.
59
R v Hayward (1908)
- Causation as requirement for actus reus
Man had argument with his wife, wife fled outside, collapsed and died due to a pre-existing medical condition (thyroid gland/ egg shell skull). Man was found guilty of manslaughter, no actual proof of violence was necessary as long as the unlawful act (threat of violence), caused the fright leading to death. The victims health condition is irrelevant and does not break the chain of causation.
o Leads to the rule that a pre-existing health condition will not break the chain of causation (egg shell skull rule).
60
R v Curley (1909)
- Where the proximate cause of an act leading to a death is terror caused by another, that person may be guilty of manslaughter even though there had been no direct violence.
o This is the egg shell skull rule in practice
- Jumped out of window as a result of scared of dying then still manslaughter even though no direct assault
61
R v Smith (1959)
- Victim was stabbed in the lung, bystanders tried to help the victim and gave improper medical treatment, he died because of that. Still someone who stabbed was held liable, because you take the risk to kill someone.
o Acts of others don’t break the chain of causation if your act was aimed at the killing of the other person.
62
R v Moloney (1985)
- Oblique intent
Stepfather and stepson had a competition who could load a shotgun fast while drunk. Stepfather challenged the stepson to shoot with his loaded gun, and he agreed, accidentally killing his stepfather.
o Not convicted for murder because there was lack of intent with regards to the consequence. Where the defendant’s purpose was other than to cause serious bodily harm or death to another then the jury may infer intent if the consequence of the defendant’s act was a natural consequence, and the defendant foresaw that this was a natural consequence of his act. Because he didn’t foresee this as a natural consequence, could not be convicted for murder. The mens rea therefore had to be aimed at the unlawful act and not the consequences.
63
R v Cunningham (1957)
- Cunningham ripped a gasmeter of the wall, and gas got into a house, and was convicted of bodily harm. Not because he wanted to harm people but because he realised that gas could be harmful and accepted the risk.
o This malicious intent due to OPOA (Ought to have appreciated), where the mens rea means recklessness instead of intent.
64
R v Caldwell (1981), overruled by R V G (HL 2003)
- In R v Caldwell, he set a hotel on fire in revenge whilst drunk because he had done some work for the owner of the hotel and quarreled with. Eventhough the fire was put out before serious damage was caused. Caldwell appealed the fact that drunkenness couldn’t be honored as a defense and the House of Lords agreed and that intent had to be specifically proven and when drunk this could not be done.
o This is the objective test.
R v G settled on the subjective test and demised the objective test: where by a person will be “reckless” only if he or she foresees a risk and none the less goes on to take the risk unreasonably. The same test as used in R v Cunningham.
65
R v Adomako (HL 1994)
- Adomako was an anesthetist, during eye operation, under supervision of Adomako, a crucial tube disconnected and the patient died due to cardiac arrest. Adomako was convicted of manslaughter by breach of duty.
o It was held that in cases of manslaughter by criminal negligence involving a breach of duty the ordinary principles of the law of negligence applied to ascertain whether the defendant had been in breach of a duty of care to the victim. On the establishment of said breach of duty the next question was that of establishing causation and, and if this could be so established, whether it should be characterized as gross negligence and therefore a crime.
66
R v Latimer (1886)
- blow glanced off and hit another victim, so transferred intent because you still wanted to kill someone, just didn’t hit the target.
o This is also called transferred intent.
67
R v Pembilton (1874)
- someone wanted to hurt someone, but instead broke a window. Couldnt be convicted. because intent wasnt to break property.
o So there is no transferred intent, if the intent was aimed at something completely different then what actually took place.
68
Thabo Meli (1954 PC) v R
- The four appellants were convicted of murder. They had planned to kill a man and then make it look like an accident. They took him to a hut and beat him over the head. Believing that he was dead, they then took his body to a cliff and threw it off. Medical evidence showed that the deceased died from exposure of being left at the bottom of the cliff and not from the blow to the head. They appealed against their convictions on the grounds that the actus reus and mens rea of the crime did not coincide. That is to say when they formed the intention to kill, there was no actus reus as the man was still alive. When they threw him off the cliff, there was no mens rea as they can intend to kill someone they believed was already dead.
o Convictions upheld. The act of beating him and throwing him off the cliff was one continuing act.
If one act is continuous it does not matter at what point somebody got called, only that it happened in the chain of events.
69
R v R (1991)
- Rape in a marriage, specific case that changed the rule that rape in a marriage was no longer excepted. Eventhough in previous case law the marital exception was applied. But the overturning was logically due to the discussions, so the rule was allowed to be overturned
70
R v Tolson (1889)
- Statutory offence; implied mens rea
woman married second time thinking her husband was dead. She couldn’t be convicted for bigamy because she had not intent at all, because she thought her husband was dead
o This is called implied mens rea, because there is an implication of wanting to marry but no mens rea of committing bigamy. Only if there is mens rea of bigamy, can someone be found guilty of bigamy.
71
Alphacell v Woodward (1972)
- The appellant factory owner was convicted of causing polluted matter to enter a river under the Rivers (Prevention of Pollution) Act 1951. The offence related to an underground pipe which had become disconnected due to a blockage. The appellant was unaware of the pollution and it was not alleged that they had been negligent.
o As a matter of public policy the offence was one of strict liability and therefore the appeal was dismissed and the conviction upheld.
o This leads to the concept of strict liability meaning: responsible for your actions and their consequences whether intentional or not, no mens rea required
72
R v Thornton (1991)
- Woman for a long time abused in a marriage and couldnt cope anymore, she sharpened a knife and stabbed her husband. Because there wasnt a sudden and temporary movement couldnt argue loss of control.
o This leads in appeal to acceptance of loss of control, based on medical evidence that the woman suffered from a personality disorder and battered woman syndrome, This means that loss of control does not have to mean immediate loss of control.
73
R v Hatter (2013)
- Hatter had a relationship, it broke down and woman went to another man. Hatter killed her and then attempted suicide. Loss of control wasn’t accepted as defence, end of a relationship is not grave enough.
o Leads to the rule that only in a very very grave situation, the loss of control argument is accepted by the court.
74
R v Clinton (2012)
- Clinton killed his wife after infidelity, was convicted to life imprisonment but in appeal overturned because the judge thought it was insufficient evidence for loss of control to send it to a jury. The judge misdirected herself as to the relevance of infidelity and wrongly did not leave the matter to the jury
o So infidelity can possibly be a defence for murder, but only if its enough to make a reasonable man act as he did. There is a high degree of tolerance and self restraint required
75
R v Camplin (1978):
- . Young boy hit an old man who was abusing him. Camplin was able to invoke loss of control because of his young age it was reasonable
o Age plays a factor amongst other things to decide if certain defenses can be deemed reasonable.
76
R v Dawes (2013)
- Dawes, went to his estranged wife's house and found her with a different man, started to hit him and he in return started to hit Dawes with a bottle. Dawes took a knife and stabbed the other man in the neck. Self-defense was rejected because Dawes had initiated the violence.
77
R v Hobson (1997)
- Stabbed an abusive and alcoholic husband to death. Firstly convicted for murder because battered woman syndrome was not recognized. In 1997 conviction for murder was quashed and a retrial ordered after two psychiatrist determined she suffered from battered woman syndrome at the time of the killing.
o Leading to that battered woman syndrome can be accepted as losing control and be used as defense.
78
R v Tandy (1987)
- Alcoholic mother strangled 11 year daughter, when she said she had been sexually abused by her stepfather. Mother claimed diminished responsibility because of alcoholism
o Conviction for murder in appeal was upheld, the appellant had demonstrated control over drinking. She drunk on a different time that day before and had stopped drinking at 6:30 pm even though the bottle was not empty.
As long as you have control, diminished responsibility is not accepted as defense.
79
R v Dalby (1982)
- Appellant had supplied victim with drugs. Victim later administered numerous other injections with others and later died. Appellant was convicted for manslaughter. Later this charge was quashed because the supply of drugs had not been cause of death but the self-injections were determined to be the direct cause of death (so self-inflicted)
80
DPP v Newbury (1977)
- An ordinary person has to believe the act is dangerous. Newbury threw stones to passing cars and one killed the driver. He claimed he didnt knew it was dangerous. Rejected because any normal person would understand it is dangerous.
81
R v Lamb (1967):
- Involuntary manslaughter (in casu not)
Lamb played with a revolver with a friend, bullets were not in the chamber but cylinder. Lamb pulled trigger causing the cylinder to turn clockwise, and firing, killing his friend. No intention to harm or intention to fire the gun. Failed to realize that by pulling the trigger the cylinder moves. Convicted for unlawful and dangerous act and criminal negligence.
o Judgement was upheld in appeal but there was no mens rea because there was no intent of a criminal act, which is needed to for unlawful behavior.
82
Andrews v DPP (1937)
- Appellant drove a van above speed limit, overtook another car and killed a pedestrian. Conviction for manslaughter was upheld. Holding that a very high degree of negligence is needed to be proved before the felony of gross negligence manslaughter is reached (Lord Atkins).
83
R v Skelton (1995)
Death by dangerous driving: No mens rea is required. All the requirements are based on objective standards. Actus reus is driving far below the normal standard, a risk of physical injury and death. No mens rea, including knowing a faulty state of the vehicle and the state of the driver. --> The question was simply whether the driving had played a part in causing death, and not simply creating the occasion of the fatality.
84
R v Parmenter (HL 1991):
- Assault occasioning bodily harm
Defendant prosecuted for numerous injuries inflicted on his infant son. Inflicted by rough handling, but unaware that his way of handling children would inflict injury.
o Defendant counts were lessened from grievous bodily harm to actual bodily harm, where it is only necessary that any degree of harm can be foreseen. Where as with grievous bodily harm, mens rea is necessary.
85
R v Pitham & Hehl (1977)
- Pitham & Hehl lived in a house of a friend who was in prison and sold the furniture. This was appropriation of property
86
R v Morris (1983)
- Morris changed labels in the supermarket to pay less money, this also count as appropriation
87
Anderson v Burnside (1984)
- Theft; appropriation. The moment you change labels, you are appropriating, because you are interfering with the rights of the owner
88
R v Turner (1971)
- Turner took a car from the garage, car was there for maintenance and he drove off, but the car was then still under control of garage and he didn’t pay for the repairs yet. This counts as appropriation.
o In this case he was not dishonest, because he believed he had a right to the car. So there was no intent to steal.
89
R v Easom (1971)
- The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything.
o At first instance the defendant was convicted of theft. The Court of Appeal quashed his conviction for theft: the defendant had only intended to steal something worth stealing, and conditional intent is insufficient for theft.
90
R v Gosh (1982)
- Doctor who charged fees for operations he didn’t carry out. He said that he did so because other actions were taken and could therefore charge the fees. Not accepted by the judge. Any ordinary person would understand, charging for operations you didnt carry out was dishonest.
91
R v M’naghten (1843)
- In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a pistol and shot Edward Drummond, who he believed to the British Prime Minister Robert Pell, wounding him fatally. Drummond died five days later and M’Naghten was charged with his murder. He pleaded not guilty by reason of insanity.
o Found not guilty and rules for insanity established by house of lords
They laboured under a defect of reason
Caused by a disease of the mind; so that either
He did not know the nature and quality of his acts, or that he did not know what he was doing was wrong.
92
R v Kemp (1957)
- A man acted because of arteriosclerosis and this caused him not to understand his actions. This was allowed as defense, even though it was not a mental illness. This showcased that the mind has to be defect, and you don’t have to suffer from a mental illness for this to be the case
93
R v Clarke (1972)
- absent-mindedness is not enough to claim defect of reason. A woman went shoplifting and basically the judge decided she couldn’t invoke the defense of insanity (which she didnt want). Because the judge claimed she was probably absent-minded but not enough to be called insane.
94
R v Windle (1952)
- Windle poisoned his wife with aspirin and the wife died. He was not mentally well, but went outside to shout he would hang for it. So he knew what he did was wrong
o The judge also refused to refer the case to a jury because he believed that by shouting the defense of insanity would no longer apply, since he knew what he did.
Hill v Baxter
95
R v Lipman (1969)
- Lipman was with a couple friends using LSD, while using it, he became drunk and thought they were attacked by snakes and starting attacking ‘snakes’ but ended up killing one of his friends. Claimed he didnt want to act because something else caused him to react like this. Not accepted, because he created the situation himself.
o This means that automatism as defense cannot be accepted when the situation is self-induced
96
R v Cairns (1991)
- The defendant had been driving a car. It was surrounded by a group of youths, one of whom threw himself on the bonnet of the car. The defendant, feeling threatened drove off, and the man on the bonnet was injured.
Held: When establishing the defence of duress of circumstance, the defendant needed only to show a reasonable and genuine perception of a threat of serious physical injury, not necessarily that the threat was genuine
o So the threat doesn’t have to exist against which you claim duress
97
R v Hudson: perjury
- few girls who felt threatened in the courtroom and for that perjured themselves out of fear.
o You can only claim duress when it is operative at time of crime as established in this case.
98
R v Sharp (1987)
- Sharp was member of a gang, and forced to join a robbery. Later on charged and defended himself by arguing he was forced. Not accepted because he by joining the gang, had voluntary exposed himself to those threats
99
R v Gotts (1991)
- The appellant, a 16 year old boy, was ordered by his father to kill his mother otherwise the father would shoot him. He stabbed his mother causing serious injuries but she survived. He was charged with attempted murder and the trial judge ruled that the defence of duress was not available to him. He pleaded guilty and then appealed the judge’s ruling.
o Conviction was upheld see R v Howe obiter dicta week 4.
100
R v Martin (1989)
The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the son was late for work and she feared he would lose his job if her husband did not get him to work. The appellant pleaded guilty to driving whilst disqualified following a ruling by the trial judge that the defence of necessity was not available to him. He appealed the ruling.
o Appeal allowed. No distinction was to be drawn between driving whilst disqualified and reckless driving. It did not matter that the threat of death arose through suicide rather than murder.
Necessity is therefore allowed as a defence in cases not directly related to injury inflicted on yourself.
101
R v Dudley and Stephens (1884)
- shipwrecked sailors that managed to get into a lifeboat, but no food. So they killed a young ill boy and ate him and survived this way. Prosecuted for murder. necessity is not a defense for murder.
102
A-G’s reference 1984
- Shopkeeper had out of fear of more damage to his ship during extreme riots, made 10 petrol bombs. Charged under section 4 of the explosive substances act of 1883. Pleaded self-defence.
o Could be allowed for offences based on possession in preparation of attacks provided the possession ceases when the danger of attack is no longer imminent.
103
R v Clegg (1995)
- Clegg was a soldier, guarding a military facility and suddenly there was a car coming towards him of which he saw it was stolen. Clegg shot a passenger. It was excessive force so no self-defence available.
o Leads to that when excessive force is used, self defence can never be invoked.
104
R v Gladstone Williams (1984)
- The appellant witnessed a man attack a youth. He rushed to the aid of the youth and hit the attacker. In fact the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping. The appellant was convicted of ABH under s.47 of the Offences Against the Person Act 1861. He appealed contending that the trial judge gave a misdirection to the jury in requiring the mistake to be a reasonably held mistake.
The appeal was allowed and the appellant's conviction was quashed.
o This leads to mistake as a residual general defence category. This can overlap with other defences.
105
R v Beckford (1988)
- Police officer shot a man he had to right to believe was armed. This turned out not to be the case when he killed the victim. He was convicted for murder and he appealed.
o Appeal was allowed, the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances, as he honestly believes them to be in the defence of himself or another.
common law
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