Concepts of Law - A summary

Liability depending on fault;Actus Reus: The act must be a voluntary one; As shown in Hill v BaxterIn Criminal law: The fault element is often considered as the Mens Rea of a crime D won't be liable if causation cannot be proved using the 'but for' test, as demonstrated in R v White, R v Pagett D won't be responsible if there is a break in the chain of causation - this can be seen in medical negligence cases such as R v Jordan, where 'palpably wrong' treatment broke the chain, or in cases where the V's own actions contributed to the consequences as was the case in R v Williams and Davis Homicide highlights the idea of liability depending on fault as intent has to be proven to establish a murder, this is demonstrated in R v Woolins. In cases of involuntary man slaughter, subjective recklessness or gross negligence will suffice; Subjective recklessness was bought back by the courts in the case of R v G & R and gross negligence can be seen in the case of R v Adomako Defences may arise where D has the Actus Reus and the Mens Rea but is not blameworthy. 'Defending an innocent party' can be used to reduce liability dependant on fault, as well as Consent (Shown in R v Wilson). Partial defences may also reduce liability dependant on fault; Diminished responsibility is permitted as a defence under the Homicide Act 1957, section 2. This can be seen in cases such as R v Bryne, where it occured from perverted sexual desires that created irresistable impulses, in R v Clarke, where it occurred by depression, in R v Ahulawalia where it occurred from battered wife syndrome, in R v Sanderson, where it occurred by paranoid psychosis (arising from a bad upbringing) and in R v Reynolds, where it was said that it could arise from 'diseases of the mind' such as post-natal depression or Premenstrual tension. Loss of control (formerly known as Provocation) is also allowed as a partial defence under the Coroners and Justice  Act 2009, sections 54 and 55. S.54(1)  says that a person who kills or was party to a killing my be convicted of man-slaughter rather than murder, where there is (a) a loss of self-control, (b) where the loss of self-control has a 'qualifying trigger' and (c) where a person of D's age and sex with a normal degree of tolerance and self-restraint may have reacted in the same or in a similar manner. Self-Defence may also be used. Mens rea (the guilty mind) is a required element except in cases of Strict Liability. Without Mens rea in normal cases, the defendant cannot be proven at fault. In R v Clarke, depression was used to prove absent-mindedness and therefore there wasn't sufficient fault for theft. In Elliot v C, it was seen that the D didn't have the mental capacity to understand the consequences of her own actions and therefore didn't have the mens rea to prove fault. Sentencing - The Criminal Prosecution Service must prove the required degree of fault for the offence charged.  

Fault - The responsibility for failure or a wrongful act

In Civil Law: Liability can exist where there are the interests of two parties being taken into account, for example, in Lewis v Averay. The interests are balanced depending on an element of fault. When awarded damage, the aim is to restore the claimant to his per-tort position, so liability is linked to the extent of the harm caused. Damages are reduced where the claimant is partly at fault - Jebson v MOD In Tort Law: When establishing liability, 3 tests must be done; duty of care, breach of duty and Damage. Breach of Duty links directly to fault as it takes into account risk factors to set the standard of reasonable care. This can be seen in cases such as Bolton v Stone or Paris v Stepney borough council Contemptuous damages happen when the claimant is at fault in bringing the action. E.g. in Paplin v Express Newspapers   Aggravated damages are awarded if the C's injury has been aggravated by the D's conduct - this will therefore increase damages given. This is shown in Ansell v Thomas, where the C was forcibly and wrongly escorted from work premises by police in front of his employees. Exemplary damages can be awarded to punish the defendant - as was the case in Treadaway v CC of West Midlands The Occupiers Liability Act 1984 links to fault because the fault threshold is reduced in the case of trespassers - as in Thomlinson v Congleton The OLA 1957 also links to fault as the liability is based upon reasonableness - section 2; 'an occupier must take such care as in all the circumstances where it is reasonable to see that the visitor will be reasonably safe using the premises for the purpose that he is invited or permitted by the occupier to be there for'. In cases of allurement, liability is based upon fault where fault is reduced by the reasonable allurement - as in Glasgow v Taylor and Jolley v Sutton Fault is also reduced in the case of children - as it was in Phipps v Rochester corp.

In Contract Law: In cases of misrepresentation, liability is based somewhat on fault, where fraudulent misrep. carries higher liability than innocent misrep. Where a contract is breached, the breach of a condition carries higher liability than a breach of warranty - shown in Bettini v Gye and Poussard v Spiers

Liability Without Fault;There are circumstances where liability can exist without fault; this can be seen as very unjust but it usually only happens where other considerations are judged to outweigh the interests of the individual involved.In Criminal Law:In cases of negligence, the breach is based upon the standard of care of the reasonable man, and therefore is an objective test, meaning it doesn't take into account the state of mind. In s.20 and s.47 of the Offences against the Persons Act 1861 state 'intent or recklessness as to...', therefore no mens rea is strictly necessary for the harm caused. This implies that there can be less fault than the defendant can be liable for. The Law Commission has recognised this injustice and suggested that these two offences should be replaced with reckless serious injury, and intentional or reckless injury respectively. This would establish a closer link between fault and liability. Strict liability offences do not require mens rea and therefore do not have a clear link between liability and fault. This can be seen in Smedley v Breed, Alphacell v Woodward, and Harrow LBC v Shah. Absolute Liability Offences waive the right that the Actus Reus must be voluntary. meaning D can be held liable and convicted even where they were not in control over their actions - Winzar v CC of kent

In Civil law (Tort): Vicarious liability is where one person is responsible for the actions of another, in most cases this occurs between employers and their employees. this is shown in Limpus v London Omnibus and Twine v Bean's Express Strict Liability occurs where no mens rea is needed - as can be seen in the rule of Rylands v Fletcher In negligence, the standard of care in decided upon the 'objective test' of the reasonable man, so the defendants state of mind is not taken into account, as in the case of Nettleship v Weston

(Contract):Product Liability

Fault