LAWS101 - SEM2

• Common Law is law made by judges/ judge made law
• Civil cases are an individual of soceity suing another individual of soceity - no state involved

  WHEREAS

  Criminal cases are where the state is involved
• Plaintiff = initiates the claim

  Defendant = defends the claim

  They transition to appellant vs respondent if one of the plaintiff/ defendant appeals the decision

  Appellant = the person who files an appeal when they are not happy with the result

  Respondent = the person who is responding to the person who files the appeal
• Ratio Decidendi/ 'the ratio' is the reason for the decision
• Stare Decisis is where like cases ought to be decided alike

  • The Doctrine of Precedent
• The Doctrine of Precedent is the fundamental underpinning of our law
• Obiter Dictum is the comments/ judicial muttering made on the side

  Eg; "If the facts were different in this way.....I would have found that...."
• Cause of Action is something you must go to court with as a Plaintiff

  • You cannot just rock up and say you were annoyed by something, you have to provide the facts and legal principles

  Eg; Negligence, Privacy, Fraud
• The Donoghue v Stevenson case

  Where Mae Donoghue, a porper, went out for afternoon tea at a cafe and found a snail in her drink - which her friend paid for.

  ----> She didn't have a contract with the manufacturer or retailer

  She sued Stevenson who manufactured the drink for money to compensate for the damages she experienced (nervous shock and gastroenteritis)
• Contract = a promise between 2 parties that the law will enforce
• Negligence is a species of tort (which is a civil wrong, act or omission that is independant of contract) involving a lack of care/ attention which causes someone harm
• The key question for the court in the Donoghue case was:

  Does the manufacturer or drink in an opaque (dark) bottle owe a duty of care to the ultimate consumer to take reasonable care the drink is free from defect?
• Donoghue v Stevenson was a revolutionary case for the state of the law.

  Before Donoghue the 'suing' environment was challenging;

  Could not sue negligence if you could not fit yourself in these categories:

  • Making or selling something that is dangerous in itself already
  • Defendant guilty of fraud in marketing the product
  • Non disclosure to recipient of dangers in product known to distributer or seller

  Although, this changed after Donoghue
• The 2 judges on the Donoghue case were Lord Buckmaster and Lord Atkin
• The neighbour principle means you must not injure your neighbour - you must take reasonable care to avoid acts or omissions (torts) which you can reasonably foresee would likely injure your neighbour

  • The neighbour is the person you should be thinking about when making decisions - considering how they will be impacted
• The court, overall, found that:

  1. The consumer of ginger beer in the dark bottle is someone who is closely and directly impacted by the manufacturer (they make it to be sold and consumed all over the country)
  2. There was no possibility of inspection of the bottle because it was dark/ opaque
  3. The Manufacterer knew this when producing the drink
  4. THEREFOR the manufacterer does owe a duty of care
• After Donoghue was "through the gate" - with a duty being decided as existing, she then needed to show:

  • The duty is breached
  • Breach causes harm
• The eggshell skull rule means you are responsible for the full extent of a damage. There is no point of defence around a persons susceptibility

  Once there is foreseeable harm, as a general rule, you are liable for the lot

  • Eg; if someone is run over by a car and their skull is crushed, the defendant can't not be liable just because the people who got run over is already susceptible because of a thin skull etc.
• A core concept in the law of negligence is Contributory negligence
• Contributory negligence is where the plaintiff might succeed against the defendant (so yes they can go home with their money) BUT they are also a part of their own misfortune/ damage because they have been careless as well.

  As a result the court would have to figure out what ratio the plaintiff is responsible and then the compensation can be reduced accordingly.
• Res ipsa loquitur means the facts speak for themselves and negligence has clearly occurred but the court just need to determine who from.
• To owe a duty = to have a proximate relationship
• Proximity or a proximate relationship means the parties must be 'sufficiently close' so that it is 'reasonably foreseeable' that one party's negligence would cause loss or damage to the other.
• 2 'planks of negligence'

  1. Do they owe a duty of care

  If yes, then move to next plank

  2. Have they breached this duty of care in the facts
• When assessing whether there is a breach of duty of care, the courts also look at

  • The social utility and desireability of the defendants actions (the court is trying to be sensible and have their finger on the pulse of soceity. They look at how beneficial the defendants acitvities are for the community).
  • The cost/ practicality of the measures to reduce the risk of harm (the court is going to look at what the cost of reducing harm around the defendants activity is)
• Injunction is the legal term for a courts orders to stop or force a certain activity
• Manufacterers owe a duty of care to the consumers/ users of their product always. Even when they don't have a contract with them

  In the exam, if you see a scenario where there is a manufacturer and a consumer, you can probably rick off straight away that there is a duty which is owed.
• Even if there is a duty of care and damage occoured, it doesn't always mean there is negligence
• A duty of care applies to harm that is foreseablely PROBABLE, not merely possible

  • PROBABLE OVER POSSIBLE
• If there is a faulty product, the only way for the defendant to defend the accusation is to say that they reasonably expected the plaintiff to check the product before use
• Warnings and reasonable expectation of inspection can break the proximity
• Breaking the proximity = duty of care not there anymore
• If both planks of negligence is successful and the defendants are liable, it doesn't matter about the plaintiffs suceptibility

  • Using the eggshell skull idea; you are still up for the lot either way, even if they are more comprimised
• Volenti non fit injuria means no harm is done to those who consent
• Vicarious liability

  = Instead of seeking compensation from the person who caused the harm, you seek it from their employer.
• The reason for vacarious liability is all around money. It is beleived that an employer will have more money than the employee so it is better for you to sue the employer not the employee
• Novus Actus Interveniens is a new act by someone else that occurs after the negligence and breaks the chain of causation
• Chain of causation = the events which make the causes and events
• Privacy is a relatively new tort with many questions still around it - not fully understanded/ outlined

  It is when someone tries to publish or share private information about someone else
• The 3 levels/steps to proving liability of privacy

  1. Public disclosure
  2. Of private facts (where most of the meat is; is the facts private?)
  3. Highly offensive and objectionable to a reasonable person of ordinary sensibilities