The fourth dimension of land mark ownership. Role of formalities

system of land law started in middle ages.

The first three dimensions are width, length and height/depth.

Fourth dimension – time.

king gave land to lords

Bernstein v Skyviews 1978 – land ownership can go above ground level and below it.

land can be owned over lifetimes

Rudden said there was an ”interposed abstraction” that means that the ownership of the land lasts even as the individual dies.

it is the state rather than the land that is owned.

only the crown owns land – others have a mere interest in it

ownership of land gives one the right to use it in any way – almost

easement is a lesser land interest. this is a private right a landowner has to restrict the activities of his neighbour

restrictive covenants – prevent what can be done with land of a neighbour

mortgage – someone is give an interest over land as a security for a debt owed

these gives someone who owns the interest a non possessory and more limits single use over land

2 important estate s

1- ”fee simple absolute in possession” = this means freehold estate of land for all time.

2nd type  ”term years of absolute.” that is only leasehold estate but usually called just lease – this is limited for a set number of years

both estate are listed in LP 1925

these are the only forms of estate capable of existing at law

– if necessary formalities in creation of transfer have not been complied with these can become equity

There are 2 further forms of freehold estate – life estate (last for lifetime of one grantee)  and fee tail (estate subject to limitations about who may inherit it and often limited to male line descendants of the grantee

these can only exist in equity i.e. behind a trust

—————————————-

THE ROLE OF FORMALITIES

property interest in land can be acquired by original acquisitions via taking possession , the majority of legal and equitable interest in land are acquired derivatively 

this occurs either through transfer of existing interest –  e.g. when fee simple owner of mortgagee transfer their interest to another or via the grant of subsidiary interest carved  from an existing one  (as when a fee simple owner grants someone a lease, or a leasee ( e g an existing leaseholder) grants a sublease )

derivative acquisition usually occurs deliberately by a gift or bargain” (but not always  as we will see when  we consider the creation of non express easements) in which case it is prudent and reasonable  for law to require  the completion  of certain requirements , known formalities  , which provide evidence   of what was intended   ; concentrate  the minds of the parties involved;

jurist  Lon Fuller said – channel people down certain prescribed routes

formalities can cause injustice

where one party relies to his detriment on oral agreement  – this is not enforceable

declaration of trust involving land

in these situations equity  will sometimes  but not always undermine formality – this will intervene to enforce the arrangement via the doctrine of proprietary estoppels

we need to differentiate contract from conveyance

in land transactions the contract is an agreement to transfer an interest – this usually (but not always as in the case of gift) precedes the actual transfer known as a conveyance

land transactions are more than buying and selling of land  this distinction is encountered in that setting where the first stage us referred to as ”exchange of contracts” and the second stage is ”completion”

different formalities apply to contracts and conveyances as the former bilateral instrument formally confirming the agreement that has been traced while the later is a unilateral procedure where the actual transfer occurs

——————————————-

Land law.

introduction

land law requires solid knowledge and understanding of statutory rules and cmmon law rules.

Registration of title is key

leases, licences and co -ownership are vital

———————–

STUDYING LAND LAW

A COHERENT BUT COMPLEX SUBJECT

a disciplined approach and logical analysis is needed.

registered title and unregistered title are problematic – rules about the 2 are very different.

I must find which category something fallse into  – registered or unregistered title

Legal rights and equitable rights are different

law and equity have different approaches to enforceability

lAND LAW is v statutory

land must be tradeable but there must be security of ownership

right to walk across someone else’s land

different interests – rights of boyser, seller of alnd and third party with some interest in it e.g. right to live there or loan secured against it

____________________________

IMPACT OF HUMAN RIGHTS ACT

since HRA law must be considered in view of ECHR

public authorities must uphold convention rights

new statutes must comply with ECHR

courts must interepret legislation so far as possible in accordahcenw ith ECHR

adverse possession is a human rights issue

a squatter’s claim to land may violate the human rights of the landlord

the grand chamber of the echr overruled a decision by a court of first instance which found sucha  violation.

_______—–

FOUR KEY QUESTIONS TO ASK

be prepared to answer these and explain

—  is the title to the land registered or not?

—-  what interests may exist in the land?

—–   is each of the possible legal interests legal or equitable?

________ have any necessary  steps been  taken to protect  each of the possible  interests?

there has been much statutory intervention  in land law  at different times.  the dates on which events occure in a provblem questions are curail. a before and after question is vital.

case law and legislation matter

interpreting statutory rules is key.

—————————

A LITTLE HISTORY

hisotirc evoltuon of land law is compelx

from 20thcentury there has been much intervention by regulation of use  and occupation of land.

housing law, planning law and protection of tenants

private law aspects are big in this course

what is land? what interests exist in land? how can interests be created, transferred and extinguished?

how far interests are enforceable against third parties/

land law is coherent

proprietary and personal rights

1925 legislation is of great import

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OUTLINE OF THE SUBJECT GUIDE

””’

————–THREE BASIC IDEAS EVERY STUDENT OF LAW MUST KNOW

2 axioms of english property law

fourth dimension of land ownership

role of formalities

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THE TWO AXIOMS OF ENGLISH LAW

land law is part of propety law

we study private rights in land.

property rights are rights against the world as opposed to contract rights which are rights against the other party to the contract

when a landlord says keep out he is saying that he has rights against all others

property has consequences for all others

legal interests and equitable interests are different

legal rights are recognised by common law

equitable rights were knwon to the court of chancery – this developed during the middle ages. this was about flexible remedies

the writ system operated in the common courts and was inadquate

equitable interests arose when common law’s writ rules had not been followed in creation or transfer of property.

a novel interest may be recognised by equity.

common law and equity ‘s jurisdiction was merged under judicature acts of 1873-75

the admin of equity and common law has NOT been merged

reform has not prevented equity and common law being different

a legal property interest is the same as the traditional notion of property

it is a right that binds the world. the first axiom of english law is that ”legal rights bind the world.”

equitable interests are more complex

equitable interest is saying that someone other than the legal interest holder has an interest in that property and this may have priority over the legal holder

mediaeval use  – forerunner of modern day trust

a departing landowner transferred the land to a trusted friend ”to the use” of his wife and children  – he did so expecting that the friend would manage the land for the family

if the trusted friend  turned out to be untrustworthy the family would not be able to seek redress from common law because common law said that the frined was a legitimate transferee and was the legal owner

so no one could bring a claim against him in the writ system of common law by petitioning the king’s justice

as an issue of justice the king delegated this to the lord chancellor who was a priest. the lord chancellor decided matters on the basis of justice and conscience

in these circumstances the family’s claim could only uscceed if the transferee’s consicnece wa bound and thoigh the king s delegated discretion wlosly became more formalised with the estbaloshment of a court of chancery the notion of conscicne still undserpins the concept of equity today

there are big consewqunces for the ambit of equitable property interest

a court of consccince woud have no problems in providing redress for a family in circumtanaces where the transferee of the legal titled had acted in bad fait  or knw their interest at the time of the transfer

a volumteer who having paid nthing in acquiring the title to the land  lost nothing in discovering it was to the use of the family

in these circumstances equity decreed  that the transferee  took subject to the rights of the family and no one could therefore descirbe  an equitable  iterest as a personal right  against anyone  i the world who acquires the legal title to property in bad faith or with the notice of any pre existing  equitable interest  orwho gives no value  for the legal title  they acquire

rather than list all those with an equitable interest     it is simpler to define as a kind of bound property right

– binding everyone apart from one person

this is represented by the cumulative oppsite of the alternatives who are

if any transferee of a legal estate  acts in bad faith  or has notice or gives   no value  is bound bya

a pre existing    equitable interest it follows that only a transferee  who acts in good faith  and has no notice   and has given  value takes free from it.

this represents the second aximo of property law – ”equitable rights bind the world with the esception of the bona fide purchaser of a legal estate for value without notice.”

– this is called ”equity’s darling”.

this is hard

3 points to be made

_________________________

1……… in english law there are subset of property interests known as equitable interests which in historic terms were always vulnerable.

 

if the owner of a piece of land (ususally called Blackacre in textbooks) granted someone else equitable  interest over Blackacre (such as restrictive covenant or an interest behind a trust or an equitable  easement) that equitable interest would not survive the sale of blackacre to equity’s darling

 

so the owner of the equitable interest stood to lose that interest qhenever equity’s darling arose and much of the next 2 chapters are aboit how the law addressed that vulnerability.

 

__________________________

2. …………….

students often says why not abolish the disctintion and make as property interests be legal interests

 

difference between legal interest and equitable interest is critical to trust

 

ownevership is divide dinto legal title and equitable title

 

legal title is vested in trustees who manage a property on behalf of beneficiaries

the beneficiaries as equitable ownevrs have rigths to enjoy the fruits

 

justificatoons exist for the continuance of other forms of equitable property interest

rather than abolish the disctintio n betwewen different types of property interest the difference is managed by statures .

 

 

LPA 1925 – this lists all the rights in land that can become legal provided the necessary formalities have been observed in making these legal or transferring them

 

LRA 2002 – this reduced the importance in the legal and equitable divided but did not abolish it

 

—————————————————–

3…………………………………….

equity’s darling= the bona fide purchaser of legal estate for value without notice.

 

this phrase can mislead

 

equity’s darling does not mean it is equity’s favourite.

 

why would a court of conscience choose one innocent over another by favouring equity’s darling over an ewually bona fide owner of an interest  , who stands to lose their interest despite being no less deserving of equity’s favour?

 

equity’s dalring is not loved by equity – it is beyond equity’s reach

 

court of conscience has not peg on which to hangb  its jurisdiction when confronted by the purchaser of legal estate in good faith for value without notice.

 

equity is not forsaking those with an equitable interest but simply it has no means to enforce such rights  over someone whose conscience is not bound

 

pilcher v rawlins   1972

equity’s darling shows the limits of equity and not its largess.

_

 

 

 

 

weight lifts per day

i have been slacking off as I get bored of it.  one would think it get easier but in fact it does not get easier overmuch

24 october 445

 

 25 oct     405

 

26  oct    445

 

 27 oct.  310

 

 

28 oct 320

 

 

Illegality and remedies. Tort.

page 180

what wuld happen if the claimant    is engaged on some illegal and perhaps criminal   activity and this is the cause of the unjires sustained? an instinctive answer is that there should be no compensation.  Illegality seldom acts as a complete bar to a claim

in some cases the courts have denied liability in the basis of the claiamtns  wrogndoing

———- it is shocking to the socneince that the claiamtn should be allowed compensation in the cirsumtances

———– on the facts there is no relevant basis on which the appropriate standared care of could be dteremined

pitts v hunt   1991

revill v newberry   1997

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REMEDIES

damages are commonest remedy in trot

consideraion on other chapters has been given to remoteness of damage

this is about hwo much the damgs are

calculation is complxed.

possible exam question –         to make a general critique  of thw way in which damages are assessed for personal injuries

consider it at three evels

1.    given the ibjestices of the present system dies it achieve them?

2.   should the system be changed sot hat for example the damages will be paid in monthyl installment dpeending on how the claiant circumstancea re at the time of payment?

3.   should the sustme for damages be abolsihed and absorved within the social secuiryt system or is it right that victims of tort should be rteated diffwrently form those who suffer injury illenss or eneplpoyument in other ways?

a request   to  outline    the way in whcih damges will be assess for the benefit of indivual   claiamnts  in problem

here is an example  of the level     of the detail   that may be expected       there is an important     question  of princple  about how far tort damages   should be integrated  with social    security payments

it is important     to know that the law now allows  the state to recover some of what it has paid in benefits   but is no necessary to know the detail or mechanism or any difference between different kids of social security payments

_________________________________

PRINCIPLES

1.  the priuncipel for the assement of damages for personal insjires ar ein cmmon law with some statoty modificatioon e g in adminsitration of justice atc 1892

and damages act 1996

useful casw to illustare the heads of liability   and policy issues at stake

lim poh choo   v camden  and islington area health authortu   1980

this is the csdse with a ric woman unmarried with no redent s who suffered catostrophic iunjuries that left her intemittentyly ocnscious  butith an expcetiation of living for many years

2.   the object   of the damages    is to place the claimant   in the postion he or she should have been in it the tort had not occurred

3.      compensation is based in what the claiamnt   has lost and not on the claiant’s   peresent needs

this troubled lord denning   in a number of cases such as iun lim poh  choo in thet dr lim was given a v large sum of money    and nowaday it woud be much alrger.   and she could never spend it and much of it would go on her dath udner a will drawn up many eyars before or in intestacy  to people who might take no inters in her wlfare in the meantime

4.    damages are awarded once and for all as alump sum and the calculation cannot be reopned

there is v limited power to award provisional damages such as damage clcauated   at the traiol  but only payabel if certaib   damage in the claimants condtion  occur in the futute

administration fio justice act 1982 and damage act 1996

there is possibility for structured damages

none of these staren orives fir a rwciww if damages    if the claimants  circumstances change

probably many claimants get too much because their health recovers

or they find well paid work or die

others get too little because their condition is worse than thought

court has to speculate

1.   whether the claimant   ‘s condition  will improve or deteriorate

2.   what the claimant’s   future would have been if the injuries had not occurred.

________________________

THE HEAD OF DAMAGES

damages  are calculated   under various headngn  and then added together taking care tat no sum is counted twiece

a disctinion is drawn between pecuniary and non pecuniairy loss

the former damges are epxresed in money such as being unable to work

non pecuniary damage is not expressed in money

PECUNIARY DAMAGES

this is paid for what the claimant lost  because or tort or for expenditure  that the claimant has incurred as a  result of tort

LOSSES SUSTAINED

the most obvious loss os that of income if the claimant is unable to work for some time or at all or is forced to move to less well paid work

the court has to decided watr the claimant’s prospects are what they would have  been if the tort has not occurred

i.   HOW DO YOU CALCULATE THE LOSS?

the method used is the multiplier  method. the multiplicand is the claimant’s net i e after deductuon of tax etc. – annual income

the multiplier is not the number of years for which there will be no income – that woukd be too generous

imagine a man of 35 earning GBP 30 000 a year and expeted to do so for 30 yeasr

give him GBP 30 000 x 30.

ti give him all this at once would be too much. h  should get some each month

right multiplier and multiplicnad and the job is more difficult the younger the claimant is

if the claimain is a child there is no realiable way of guessing job prospectcs

———————-

ii   WHAT ASSUMPTIONS DO YOU MAKE ABOUT WHAT THE CLAIMANTS  WILL DO WITH THE MONEY?

they can keep it or spend it

what are they assumed to do? both courts and parliament have decied to chaneg the assupmttuons and assume a tyical claimant usng the money to make low risk invesmnets with a low reutrn

this unceasese the multiplier

wells v wells 1999

cooke v bristol united healthcare nhs turst 2003

____________________________

iii

WHAT ASSUMPTIONS SHOULD BE MADE ABOUT THE FUTURE OF MONEY, INTEREST RATES AND SO FORTH

mallett v mcmonagle 1970

________________________

iv WHAT SHOULD YOU DO IT THE TORT HAS ALSO REDUCED THE CLAIMANT’S EXPECTATION OF LIFE?

the situation is often misundertsoof.

if at the time of the tort the cliamant was aged 30 but had indpenently of the tort got a termianl illness and was likle y to die in five years  then the defena has to compensate for only 5 years economci loss

but if the claiamnt was 30 and had a normal life epxtenacy  as well as making him unfot to to workj the tort has reduced his life expteancy to gie year. should the conepation be for lost eanrings during the loss years

we are not talijg about compensation for the loss of life but for loss of earning during those years

house of lords ovetunred the previous law and provided that such lost earings should be compensated. but that sums that the claiamt would have sent on himself should be deducted

pickett v   british raikl engineering 1980

___________________________________

v

WHAT SHOULD BE DONE IF THE CLAIMANT RECEIVES MONEY FROM OTHER SOURCES AS A RESULT OF THE TORT?

typical cases are proceeds of insurance policy – social security payments , ension priovison, voluntary payments by employers or chairtable gits

there are in theory 3 possible solutions

—–  these sus ared decucted frm damages payable by the tortfeaser. Snag – the tortfeasor gets the benefits of the victim’s prudence

—– the claimant keeps these other benefits and gets damages in full. snag  – the claimnt is overcompensated

——– the tortfeasor pays back to the donors the sums received by the victim from other sources. snag –   in many cases the admin costs would be very high.

you will see from your reading of textbooks that all of these soltuins have some part to play

in particular some effots ar now made to see that tortfesors pack back some social secuity oayments to the state, so that the costs of accident fall more on the defendants insurers  and less on public funds

such as soecial security  – recovery of beenfits – act  1997

parry v cleaver   1970

smoker v london fire and civil defence autghoruty 1991

______________________________

EXPENDITURE  INCURRED

the claiamtn is entitled to recover the costs resulting from tort

typical examplesa re the cost of medial treatment, future institutional care, adatpion of home and assistance with faily routine

notice 2 issues

—– double compensation must be acoided. this is shown in lim poh choo. the claiamtn was unable to work againm and was cared for in nusring home.

hshe was entitled in principle for the loss pof earnings and cost of care.   but the nrusing hom was giving her accomm. foor etc which seh would have been hacing to pay for out of her income if she had not been injured.   so part of the costs f ther nrsuj g care had to be decueted to sotp her being overcompnseated

————– sometimes nruisng and supprot care is provied by spuse etc… this person may give up work to care for the victim.   it is now settled that the claiant is entutled ti conesntion for the sot of this care. this may be less then the cineome the carer would have gotten. the sumes may be held on trust for the carer

donnelly v joyce   1974

________________________

NON PECUNIARY DAMAGE

the claiamtn is also entitled to recove compendation fro pain and suffering and for lss of amenties

ths sum s awared for these losses have for the most part to be conventiona

court of apeal in a seris of case repoted together as

heilv      rankin    2001

this increased level of cpnensation

especially in severe case. one of the cases o  dealt with was that of kent v griffiths  the

the victim is suauly entitle to get private medical treatment and be compensated for it

there are no mechanism  that allow the health service in some cases to recover from the tortfeasor  the osts of care it has provided o the citm

road traffic NHS charge act 1999

_____________________________________

AN ALTERNATIVE APPROACH – STRUCTURED  SETTLEMENTS

the approach  yo damages just decribed involves the calcualtion of a lump sum   sometimes lagre which is then given to the claimant

it is possible for the parties to negotiate an agremen by which periodi paymnets are paid to the victim

they were given a boost when the inland revenue agreed that payaments made to the claiant udner such an agreement  caleld a structyed settlement  would not be taxed as income

under onvdnetionla netod axtual damages are no taxed bu the citims patys tax on income from invested dmagaes

structyed settlemtns are sanctioned by staturte i dmage act 1996 and in some cases where th victim isa  child  have to be approved by the court

the cour cannit impise structed stetlement agaunst th ewiwshe sof the aprties

the dmagse calculated in the susua way and the defendat sinsurers use the sums to prchase an annuity frm a firm of insurers specialing in such work

the structure can be made flexible but once in palce cannot be adjusted

there are a number of advanategs and dsisadvanatesg in such arrangement  frm the claiamnts point of view the main advanatge is the scruity of knowing what payment will be made in futue byt at the price of lsing the right to control th way money is used

__________________________________

THE EFFECT OF DEATH ON DAMAGES

common law has 2 problems

 

— a cayse of action in tort lapsed if either party died. this was remedied by the law reform (miscellaneous provisions) act 1934

 

this allowed most actions to survive  and be brought by or against the state of the deceased

 

an action in defamation is still an exception.

 

where death was independent of the tort  there is no problem

but where the tort caused the death then there are problems in deciding what damages are appropriate

 

———- the common law did not allow an action  by those who were dependent on the deceased for loss of support because their loss was purely economic.

 

this was changed by parliament by parliament in the 19th century . the details have ben revised on a number of occasions  – the present law is in the fatal accident act 1976

 

in practice substantial damages are payable under the 1976 act rather than the 1934 axt

 

this can be criticised because te 1976 act s based in a traditional view of the family with the breadwinner on whom the spouse and children are dpenet who must be protected if the breadwinner is killed

 

________________

THE SURVIVAL OF THE DECEASED’S CAUSE OF ACTION FOR THE BENEFIT OF THE ESTATE

 

where victim survived the tort for some time then this is the mechanism by which damages suffered by the victim while alive are recovered so that the estsa can sue for damage for loss of earnings , medical expense and pain and suffering between tort and death

 

where however death is instantaneous little or nothing payable

 

there is nothing for pain, suffering and loss of amenity

hicks v chief constable of south yorkshire police 19922

 

there is no recovery for lost future earnings

 

administration of justice act 1982

 

___________________________

THE DEPENDANTS’ RIGHT OF ACTIONS UNDER THE FATAL ACCIDENTS ACT

 

you should identify the following issues in the application of the act

 

— what categories of person are able to bring an action as dependants?

 

— what is a dependent?

 

— how are a dependant’s damages assessed?

A dream of abduction and dangerous reptiles.

I was in a small and agreeable seaside town in some other country. The sand was pale yellow but I did not go onto the beach itself. The town was on a slight eminence. All the buildings were white. There were a few white people in the town dressed unremarkably. They wandered around slowly and quietly.

There was  a young woman whom the Mossad wished to kidnap. She was a nubile brunette of typical build. I think she was Israeli herself.

Last night I watched the BBC docudrama about Mordechai Vanunu. The main charater in my dream looked like the actress who played Wendy Robbins. 

Oddly it became apparent to me that this townw as Muscat. This did not fit with it being a city of Caucasians. Maybe this city came to my mind beacause I have thought of Nelephant moving back.

Then I saw her on the street and she was grabbed by about 4 youngish men. They were all well built and wore shades. No one was around. She barely helped. She was put into a tiny boat and they wall went quickly down a canal.

Later she was placed in a cage beside a crocodile and a huge python. Luckily neither beast tried to harm her.

 I was reading last night about a crazy merkin who started snake handling in churches in the USA. I was also teaching the boy about reptiles yesterday.

I was very scared for this girl. I think there may have been a mammal in the cage too like a lion. I was told my someone that the animals might attack each other but not her.

I am afraid of serpent. I wonder what fears of mine it represents

Last night I had a phone call from a Borati woman whom I do not know. I spike french to her to confuse her. She giggled and hung up. I get a lot of these nuisance calls from a Borati female presumably the same one.

DEFENCES . this is to tort. vicarious liability.

there are specilaised defences  – defamation or nuisance action – have been consideed udner the appropriate tort.

some reference has already been made at various points to the defences listed below.

contributory negligence, consent and illegality

______________________________

CONTRIBUTORY NEGLIGENCE

defendant mya pleaed that the claimant’s neglgence contributed to the injury

this is referred as contributory negligence

until 1945 a successful plea of contributory negligence was a complete defence

law reform contributory negligence  act 1945 now provides for an apportionement of lablity between the claimant and the defendant

important issue in relation to this defence –

a—- claimant must have failed to take reasoanble vare for his safety but no question of pres existing duty of care arises.  the contributory negligence  must be a cause f the damage   and the damage must be   a reasonably foreseeable  consequence of   the contributoyr negligence.

the claimant’s neglgence may gave contributed   to the accident itself.   a motor cyclist failing to look out for ther vehcile for example

or may have contribued to the inirut ibnly – such as a drive failing to wear a seat belt

jones v boyce   1816

jones v   livox quarries  1952

B……………….. apportionment works in two ways.   the judge , MUST first determine   the amount of damages payable if te claimant had not been negligent and then deduct a certain percentage   to reflect the claimant’s   contribution.    it seems that the percentage may reflect    both the relative   blameworthiness   of the parties.  there e is modern authority for the view that   damages cannot be reduced by 100 per cent.  another defence might achieve that result,

stapley v gypsum  mines 1955

pitts v    hunt 1991

_____________________________

CONSENT.

at first  it seems obvious  that someone   who consents  to the tort  should not then  turn round   and sue. in practice   hwoever it is complex   and cotnroversial.. forst, three introductory discussiin points.

A…………. the role of consent varies from tort to tort

it has been referred to in tort of battery and defemation

in thes torts the application of the defence is straightforward

the  patient who consents to the incision and excision necessary to remove an appendix is agreeing to the veryt hing that would otherwise be battery.

the position is v different    when the tort invovled is negligence or a tort of strict liability.  there is is usually called an assumption of risk

here the claimant cannot usually know in advance   what is going to happen in the way that a patietn awaiting surgey does and thus the application of the defence is carefully cotnrolled

B………………… the defence of volenti non fit iniuria  cannot operate until there has been a tort

this seems obious . but is foten overlooked by mistake

take the postions of a claiamnt who has a dangerous job.  say on a fishing boat in the deep oceans. if the employers observe all safety regs   and take teasonble care reuired by common law then no tort has been committed

then the claiamnt cannot sue and not beause of any consent to risks

the issue of consent only arises  of there has beena  breach of regs   or of the cmmon law duty and it is argued that the claimant knew of this breach  and nevertheless agreed to face that risk.

C———————-  consent can operate int wo differrn ways .

sections 2 (1)   and 2 (5) of the Occupier’s liability act 1957

scecion 2. 1 envisages  the poccupier exlcldsuing liability    by a notice saying ;;enter at your own risk.”

so that the visitor    runs the legal risk  of being unable to get compensatrion for any unjires

section 2.5    envisages the visitor incurijng the physical risk by corssing the defective  bridge .

______________________________

EXCLUSIONS OF LIABILITY

both common law and statute recognised   the right of the defendantr   to exclude   liabilityby a suitably   worded notice.

beside the occupiers’s liability act it was at one time common for drivers to have notices on the dashbaord of their care sauing ‘passengers travel at their own risk.’

the reason was that drve back them were compelled to insurre agains tliability to third parties outside the care but not against passnegrs. This changed in 1971

this right to exclude liability is stricly controleld and has been further constraised by statute

first  exlcsuin caluses in contract are relevant

i. if the claiamnt kenw of its terms in advance

ii..    its terms clearly cover the situat that has occurred

iii.  teh claiAMNT was free to choose where t taje the risk or not.    burnett v  british waterways 1973

the main statutory   intervention has been the Unfair Ciontract terms atc 1977

section    and 11 – remember that this does not just apply to exclusions operation gin the course of business.

this act is restricted   to exclusion of liability arising in the course of business or on the premises  occupied for the purpose of a business but is otherwise of general application

road traffic act 1988   section 149 (3)  re enacting legislation 1971

prevent s car drivers excluding liability to passengers by ‘an antecedent agreement or understanding.’

there is also a law restricting the rights of employers in some circumstances to exclude their duties ti employees but the details are outside the scope of this course.

______________________________________–

AGREEMENT TO FACE PHYSICAL RISKS

 

the principles in this area have mainly been worked out inas  number of social contexts

 

A.     employer and employee

the sciope of this defence in relation ebtween employer and employee is limited by the insistence of the courtts since the end of the 19 century  that the employee must not only know of the danger but consent to ti

 

smith  v baker 1891

 

 

the defence is still allowed bu weak.  whay is the emplpyuer not allowed to rely on it much.

ICI  v       shatwell   1965

 

 

———————–

B          car passanger and drunk driver, a learner of physically disabled

 

these cases can bee seen i 2 ways. that rh pssanegr shoudl be unable to sue because of the defence of conset

 

another is to say that the defenda owed only the stanrda of care to be epcted  of a druknk a learner tc…

and only if the standard of rdinv has fallen below that elvel s ther a tort at all

 

english courts have tended to analyse it in the foemr way and the australib ciurt in the altter

 

dann   v hamitlon  1939

 

insurnace commissioners v   joyce  1948

 

 

nettleship   v westonb   1971

 

 

cook v cook   1986

 

 

 

english corius eem to have th view tht the rtoad traffic act 1988   porevent this defenc ein road accident . it may allly to oter traffic accident

 

pitts v hunt 1991

 

 

morris v murray   1991

 

 

______________________________

C

action by spectator  in sprting event against organiser  or competitor

 

 

here the court have reassned that there ws no breach od duty ebcause the defendant owbned a lesser duty appropirate   to someone striving to succeed in a comeptitve activity

 

wooldridge   v   sumner 1963

 

 

white v   blackmore 1972

 

______________________________________

D

 

it is unlikely  that the defence will ever apply where the very thing that the defendant was under a duty to do was to protect the claimant against his won actions  eg because the claimant as a suicide risk

 

reeves   v commissioner of the police of the metropolis   2000

 

 

 

Miscellaneous. Tort.

INTRODUCTION

3 topics of importance

viacrious liability – where another, usually an employer, is liable for the acts of someone else

range of defences. contributory negligence, consent to the tort, participation in illegal action

remedies for torts. damages, use of structured settlements, effect on damages when one party dies.

————————————

VICARIOUS LIABILITY

this means when one person – even though not otherwise not a tortfeasor – is liable for a tort committed by somone else. it is therefore an extreme form of a strict liability.

the only clear examplein english law is the liability of employers for the torts committed by their employers in the course of the employment

it is import to be clear about the distinction between primary liability and vicarious liability

3 examples

A – home office v dorset yacht 1970 – home officce was VICARIOUSLY  liable for the torts of the borstal officers. but neither the home office nor the borstal officers s were viaciously liable fort the torts of the boys.

officers were primarily liable  – they were the tortfeasors.

they did not control the boys who escaped and did damage to a aycht

B- attorney general of the british virgin islands v hartwell 2004

in this case the clasimant argued that the police authorities were liable for the wrongdoing of policeman on 2 bases.

forst he argyed that authorities were primarily  liabele for their own negligence  ina llwojng the policeman to remove guns from the police statiob  and use them for his own purposes. secondly he arged that the authorities  were vicariously iable for the policeman’s torts

he succeeded on the first and failed on the second

it may be therefore be necessary on many sets of facts to cinsider the possibility both vicarios liability and primary liability

C. there is a further example in mcdermid v nash dredging and reclamantion co ltd 1987

here the claimant was himself and employee and both vicarious liability and the employers non delegable duty f care a form of primary liabiliuty were possibel routes to success for the claimant

__________________________

JUSTIFICATIONS FOR THE DOCTRINE.

there are at least 2 practical advantages form the claimant s point of view

1 an employer is much more likely to hae the asstes to pay adamges andf to be insured against liability than an individual employee

2. it may sometimes be unclear which of a number of employees has actaully committed the tort, but the employer will be vicariously liable for all of them

the mere fact that the claaimant it is a practical matter likely to obtain compensation  by suing the employer is not in itself a reason for the doctrine

many different theroes have been advanced t justify the doctrine of vicarious liabiklity.

plasuabile justification

— the employers has established a business and drevies the economc benefits of commercial success – the employer ought therefore to be liable for the damage caused by the business. the emplyer has created aa rsik and shuld be answerable if the risk materialises. similar agryment have been used to justifty other examples of strict liabiltyu, such as consumder protection and liabiklity for animals

—  the employer is more likle to take staff trainign and supervision seriouslty. even thoigh the employer has no defence based on care taken there ay be an overall advantage

——————————————

ESTABLISHING VICARIOUS LIABILITY

to succeed a claim based on vicariously liabikit the claimant must establish that

—  alleged tortfeasor was an employee

—  the employee committed a tort

— emplyee committed the tort in the course of employment

————————-

ESTABLISHING  THE EMPLOYEE RELATIONSHIP

it has been proved difficult to identify a test that will distinguisgh an employee for whom there is vicarioys liability from an independent cotract for whom generally there is no vicarious liabiklity

the issues are complxed. answer may depend on precise contract

broad issues

(A)   traditional example od disctinion is that chauffeur is an employree and a taxi drive is an independetn contractor

chauffer’s accidents – the passenegrsi vicariously liable

taxi driver – the passenger is not liable

even if the taxi drive is on contract to dive the passenegr every day there is no vicariousl liability

———————————–

(B) there are many contexts in which the same question has to be answered. there are different tax and national insurance  implications for employees and an emppyee has greater employment right and proecttion

a number of cases cited in this section are ot about liability in tort

same tests are applied whatever the the situation

where emp;lyer and so called employee are in a contracualy realatioshop that is complex about tax and national insurance .

ready mixed concrete south east ltd v minister of pensions and national insurance 1968.

————————–

C –  there is nowadays a great variety  of patterns  of employment. it is not clear h=what arrangemens  of primary   or vicariously  liability   can best  deal with these.

examples

provision of AGENCY STAFF is common in many industries  , notably in clerial  ND hospital  work. bdoesi  such as insurance  companies or utiltiy  companies  enter into contracts  with custmers under which   they agree  to supply, eg  plumbers  to deal   with emergencies, in what circumstances   might the agency    or the insurance  company  be primarily  or vicariously  liable for the acts of emplyees supplied.

__________________________________

D.  no single ests has proved satisfacotyr as a distinction between employees and independtn contractors

courts have referred  to the extent to whcih the emplyer csn control how the individual does the job

they have considered how far te individual can be said to be integrated into the buiness

they have adopted an impressionistic  approach  and have added up the features  of the relationship, identifying those features  taht were more like a contract of service (i.e of employment) and those that were more like  a contract FOR SERVICES anf considered where the balance lay

cassidy v   minister of health 1951

stevenson jordan  and harrison   v macdonald   and evans 1952

market investigatiosb ltd v minister of social secuerity 1969

hall (inspector of taxes) v     lorimer 1994

————————————–

E

there is a pracitular problem with borrowed servans

where for exmaple a company supplies a crane and its driver to work for another company

it is plain that the driver remains an employree but of which company? the presumpation  seems to be that the driver remaisn the emplyrees of the ledning copnay unelss this is displaced n the facts

mersey docks and habrour board    v coggins adn griffiths liverpool ltd 1947

bhoomidas v port of singapre authorty 1978

the effect of the contract etween the two competing emplyers has been considered

phillips products v hyland   1987

thompson v t lohan plant hire ltd 1987

_____________________________________

F

there is a special case of vicarious iability called casual delegation

it is applied only for motor cars

courts have held that owner is liable  for the negligence of the adiver who is dribving with wthe owner’;s permission and at least to some extent for thw owner’s prupose

it is hown in ormrod v crosville motor  services  ltd 1953

an attempt by lord denning to creat a doctrine  of the family car under which the owner would be liable whicever member of the family was dribving negligently was rejected by the house of lord in morgans v   launchbury  1973

—————————————-

ii. THE EMPLOYEE MUST COMMIT A TORT

the employer is liable vicariously only if the employee has committed a tort

that means that the employer can take davanteg of any SUBSTANTIVE defence available to the employree such as contributory negligence  or volenti non fit iniuria

ICI ltd v shatwell 1965

if the employee has commited a tort but cannot be suded because of some procedural bar  the emplyer cannot take advantage of such a defence

broom v morgan  1953

the clasiomant and a tortfeasor  were husband and wife .

at that time sposues could not sue each other but now they can – Law Rrodm (hsuabnd and wife ) act 1962

this did not precent the hsuabdn surin the wifes; employer vicariously

__________________

iii

THE TORT MUST HAVE BEEN COMMITTED IN THE COURSE OF EMPLOYMENT

this is obvious

it is diffiuclt as a test to distinguish betwee tort commited during course of emplpyment and those not

in borderline cases courts favour impsing vicarious laibaility

__________________________________

A

THE SALMOND TEST

this was set out by sir john salmond

”a master is liable even for acts which he has not authorised, provided that they are so conncted with acts which he has authorised that they may be rightly regarded as modes although imporer modes of doing them.”

explanation of this test is shwon in cases

a.      century insurance co ltd v northern ireland road traffic board 1942

beard v london general monibus co 1900

b…     nukber of cases have dealt with the problem where an employee has dviated from the coure os employment. was this enought o take him out of the course of employment?

willaims v hemphill 1966

storey v ashton 1869

ilkiw  v samuels 1963

c….   usually an emplyee is not in course of employment when drivint oa nd from the place of work there are exception depending ion the nature of the job adnd conracrs

smuth v stages 1989

d….  this is another complication. emplyee was doing something specificallty FORBIDDEN by the emplyer. this outcome then depends on whether the prohibitoin limtied the sphere of employment  in shiwhc case the employee was NOT in the course of employment. It may limit the manner in which he can do his duties . In that case the employee is still in his course od duties

plumb v   cobden flour mills   co ltd 1914

limpus v    london genral omnbus co 1862

rose v plenty 1976

e…..    in these cases  seen s  far the emplyee has cmmitted the tort of negligence   . it is  more difficult to appyl vicarious liability  where the employee has DELIBERATELY cause the damage to the claimant and or the employee has been guilty of a crime

how can such activirs be in the course of employment?

using such tests the courts did impose vicarious liability where the employees was acting for the benefit of the employers. such as assaulting a suspected thief. or stole property he was employed to clean

poland v parr and sons 1927

warren v henleys    ltd 1948

lloyd v grace and co and smith 1912

limits of this are reached where a deptyu head sexualyl abused a pupil dring school trip to spain.

trotman v north yrokshire CC 1999

it is ard to describe such conduct as being an unauthorised mode of conduct.

court held that the employer was not vicariously liable

this case has been overruled by the house of lords

__________________________________________

B

THE LISTER TEST.

house of lords decied that the warden of a residential school who years klater was convicted of sexaul assault was acting in the course of his employemnt so the emplyers were liable.

lister v hesley hall ltd 2001

the views were expressed by various judges are v importanand must be considered

— house of lords stressed the close conncetion between the acts the warden committed and his jib.  some judges noted that the warden was the very person supposed to protect the children.    this is like a non delegable duty of care more than vicarious liability it hints at fault by employers

— which employees might fall ityh the lister test. first there are soem dicta in the case itself. in particular it eas said that there would ne no vicarious liability if the abuse had been perpetrated by a caretaker or hany man at the school whose duties involve  looking after  the property rather than the pupils

scope of lister has been considered in2  cases

mattis v pollock   2003

attorney general of british viring island v hatrwell 2004

it is unclear how far lister test will supplant the traditional  approaches.

—————————-

THE EMPLOYEES POSTion

even though the employer is vicariously liable, the employee also remains liable.

exam candidate v often seem to think tha vicarious liability is some kind of defence tha enables the wrongdoing employee to transfer liability to the employer.

 

this is not so

 

an employer is entitled to recover from the employee the amount of any damages paid to the claimant

lister v romford ice and cold sotrage co ltd 1957

 

the employer is insured and the effect of the rule therefore is that an insurance company is able to recoer the amount it has paid  under the insurance policy. the insurance companies have entered into an informal agreement not toe exercise the right recognised in the romford ice case.

 

 

weight lifts

         24  October lifts – 445

 

25  October lifts — 405

 

 

Defamation – innocent dissemination and remedies

DEFAMATION

INNOCENT DISSEMINATION.

this defence in in section 1 od defamation act 1996. it is defence to show that

— the defendant is not the auhrot or editor or commerical publisher of the statament

—  the defendant took reasonable care in the publication of the statement’

—  the defendant did not know or had no reason to believe what he or she caued or contributed to the pblication of the statament

it thus serves ti rpoect parties involed in the dstrubtuon who inadvertentrly become invlved in the publication of the defmatroy material  provied that they ubnderake reasonable care

furthewr  section 1 (3)    a to e    provide non-comprehensive    list of indicual who do not qualify    as authors editor or publishers

godfrey v demon internet letd  1999

____________________________
UNINTENTIONAL   DEFAMATION

 

section 2 to 4 of the defamation act 1996 establish   a procedure whereby a person who INADVERTENTLY defeames another can publish an apology and correction  and pay a person a sum of momey .

 

this is not strictly speaking a defence.  to be effective the defendant must not serve a defence.

 

it is a form of settlemtn avoid very cosrly litigation

 

nder section2 the defendent must be prepared

 

– to admit that he was wrong at least in part

 

— to offer in writing to make a suitable apology and correction

 

—  tp publish the correction and apology in a manner that is reasonable  and practicable in the circumstances

 

—   to pay the claimant    such compensation  if any and such scosts as may be agreed or deterined to pay

 

if we make amends under section2  biut this is o=not accepted it is a dfece unless the defendant knew or had reason to believe that trhw stATMENR REFERRed to the claimantr   and was false and defamatory  of him see section 4

 

milne v      express newspapers  nonumber 1    2004

 

horrocks v lowe     1975

 

the person makiing the offer    d=need not rely on anoy other defence    but if he does then section 4     specifies   that he may not rely on any other defence    .

 

in any even any offer may be relied on in mitigation of damages

 

_________________________

CONSENT

 

it is a defence tat the claimant expressly or impliedly    consented to the publication of the defemation

 

cookson v   harewood     1932

 

 

chapman v   lord ellesmere   1932

 

 

——————————————

REMEDIES

 

there are 2 main remies

 

damages

 

injunctive relief

 

damages are assessed by the jury

 

damages may include an award for aggravated damages where the defenden’s conduct has led to mental distress and examplary damages wehtethe defendant set out to prioft    at the expense of the claimant;s reputation

 

section 12  of the human rughts act says a court must have regard to freedom of expression when cosndiering whether to grant a remedy which  ight affect this right

 

concern has ben expressed that trhe jury despite judcail direction is not best to assess damages.

in other civil cases damages are assessed by the judge

 

v high awards .

section 8 of the courts and legal services act 1990 empowers the court of appeal to substitute its onw figure of damages for that the jury without the need for a retrial.

 

rantzen v mirror group newspapers 1986 ltd — case in 1994

 

jihn v  mirror group newspapers ltd 1997

 

seek to increase judicial guidance

 

a jury will be directed to seek guidance form previous court of appeal  decsions udner section 8  and to ciosnider purchinas power of the award and if is i proportionate

 

reference made to the damages in personal injury cases

 

Kiam v MGN ltd 2003

 

grobbelaar v news group newspapers ltd  2002

 

 

courts are reluctant to give injunctions before trial  – interlocutory injunctions

 

this would restrict free speech  without benefit of cosndieration by a court

 

bonnard v perryman 1891

 

the court has the jurisisdciton to restrain an injunction the publication of libel  but the exervise oft his is discretionary

 

interlocutory injunction should not be grnated unless there is a v clear case abd sghould be granted where the defendant swears that he will bve able to justidfy the libel and the court is not satisfied that he will be able to dos o

 

court of appeal in  holley s msith  1998 supported this

 

court’s discretion to grant interlocutory relief would not ordinarily be granted to restrain a libel where the defendant had a defence or claimed justification unless the claimant proved that the libel was plainly untrue

 

claims may be dealt with summarily under section 8 to 10 of the defamation ct 1996

 

where claimant had no chance of success ad here is no reason why the claim should be tried the claim is dismissed

 

where it seems that the court that there is dno dence to the claim and the claim is the the court may give judgement and summary relief

 

 

Defamation: defences thereto – Tort

there are a number of defences

they provide if complicated  basis on hcih the defendant can justify the publication of basis of freedom  of expression truth or consent

we will see

justification – fair comment –     qualified privilege

recent case law has been active in qualified privilege

court s explore impact of Human Rights Act 1998 on tort of defamation

________________________________

JUSTIFICATION OR TRUTH

defamatory statement presumed to be untrue

unless the defendant proves othersiw

truth or justification is thus seen as a defence

it is irrelvant that the defendants intention was malicious – contrast fair comment and quallified privilege

only exception is the rehabilitation of offenders act 1974

defendant must show that the defamtory statament were substnatuonally ture

alexander v north eastern railwasy co 1865

defrmation act 1952

partial jsutification is NOT a defence

defendant miust justify every innunedo and not just the main one

wakley c cooke    1849

the burdern is on the defendant to justify the substatial truth or sting od the allefations

to do this the defendant may wish to raise matters with a common sting in supprot of his or her claim

willaism v reason 1988

cruise and another v express newspapers plc 1999

______________________________

FAIR COMMENT/

this defence serves tro protect defendant who seek to criticise claiamnts , provided they act fairly  honesytly and base their comments n true facts

it clerly supports freedom of expression but within a conteolled environment

in looking  at this defence we can identify some of the tensions which ecist ina llwoing defendans anfd aprtcoualry journalists the rigt to express crticism and the right of claimants to proect their reptuation from maliciious comments

Fair comment had 3 requirmenets

1.  statement must be in the public interest

]

2.   it must be a comment on true facts

3.   it must be fair and honest

it is important to not that public interest does not mean anything that is of interest to the public

this must be about matters that the public are LEGITIMATELY interested in

london artists v littler 1969

statement must be a comment on facts

this can be inferred for example form a headline

kemsley v foot  1952

house of lords seemed to adopt a strict line in the more recent case of \ telnikoff v matusevitvh  1992

letter was written in response to a a previously published article    in the telegraph . in decing whether te allegation of racism was a  fact or comment eh coiurt examined the letter without looking at the article it criticised

house of lords reasoned that many readers of the letter would not have read the article or would have not remembered it

it would thus be judged in isolation

the comment must be fair and honest. court use an objective test and was the opinion however exaggerate d obstinate or prejudice  honestly held by the person expressing it

lord nicholls   in reynolds v times newspapers 2001

albert cheng  v tse   wai chun 2001

branson v bower number 2

2002

——————————–

PRIVILEGE

ABSOLUTE PRIVILEGE

absolute privilege applies on occasions when one reports what is said in any court or legislature

this is need to protect free speech

this is irrespective of the motives of the author

hamilton v fayed 2000

defamation act 1996

reports and papers published ordered by   to be published    by either house    of parliament  , judicial proceedings

defemation act 1996

communications between high officers of state are absolutely privileged . chatterton   v secretary of state fr india 1895

_________________________________________

QUALIFIED PRIVILEGE

this is weaker than absolute

it applies only occasions where it is desirable that  there should be free speech

where the author has activated  by malice

horrocks   v loew   1975

judge to decide whether the occasion is privileged or not – whether a reasonable jury could find tha authors’   dominant motive was malice

jury will decide if malice has been proved

qualified privilege exists at common law and under the defamation act 1996

______________________________

QUALIFIED PRIVILEGE AT COMMON LAW

the court looks for 2 requirements

— that X   had a duty or interest ibn communicating the info   to Y

this may be legal moral or social

____  Y has a corresponding interest un receivint the info in question

adam v ward  1917

toogood  v sprying   1834

osborn  v boulter  1930

watt v   longsdon  1930

bryanston  finance ltd v de vries   1975

keanrs v general council of the bar   2002

therefore is an old employer   writes reference for e and send it to new emplyer that reference will be protected    by qualified privilege .

my former employer   us under a social duty to prove the reference. my new employer has a keen intesrs in thus

both requirement are satisfied

my former employer is protected against defamation

unless the reference was written in malice

spring  v      guardian assurance  1995

in view of importance of freedom of speech  it has been quaestion whetehr the meda shoudl get qwualified privilege for any sotry tget oubic especially about politivians

reynolds v times newspapers    ltd 2001

house of lords rejected the view tat there was general qualified privileged

the courts looks at each case

lord nicholls gave some guidanece

the coirt said they are some factors whih are not exhaustaive but help in decicin whetehr a duty to pulic polioticasl discussion :

—-

the seriousness of the allefation  the more serious chaege the more the person’s image is damage te more the public is misinformed and if the allegation is not true that is

——   the nature of teh information had been taken to verify the info

—-   its source

—- what stes had been taken to verify the infor

—-  teh statius of the info  how reliable is the report

—-   the urgency of the matter

— whether the comment is sought from the claimant

—–   the tone of the article

—-  whether the gist    of rhe cloimants’s side of the story has been told

—- te general circumatcnes and timing og the publishing

reynolds test has beena applied subsjequentyl in a number of cases

it is clearly noer asy test to satisfy

the test is one of

” responsible   journalism” and it sf rot the newspaper to    reference the 10 crtierai

the paper needs to show thecourt that they deesergve qualified privileges

loutchansky    v times newspapers ltd number 1    2001

loutchansky v times newspapers ltd number 2    2002

bonnick v morris    2003

jameel v wall street  journal  europe srl   2005

______________________________

QUALIFIED PRIVILEGE    UNDER STATUTE

THIS Is foudn under section 15   and schedule 1 of defamtion act 1996

section 15  ay provide publication of any report or statement conatined in sechedule 1 of the act   and is privileged   unless the published material has malice

secheuld 1 is divieed into 2 sections

part 1 deals with reports that are privieledg ”without explanation or contradiction.”

part 2 deals with ereprots which are privileged  ”subject to explanation or contradiction.”

that means qualified privilege may be lost if it is not proved that the defendant has been requested by te claimant to publish in a suitable manner a reasonable letter or statement   by way of explanation  or contradiction

has been refused   or neglected    to do so

section 15 (2)

mccartan turkington breen v times newspapers ltd

2001