Aqa law04 tort + concepts revision

Here is the law and morality essay:

The law is the “formal glue that holds fundamentally disorganised societies together”, according to Thomas Hobbes. It is the system which acts as both the guarantor of individual freedom from tyranny and oppression (as shown by the Human Rights Act 1998) and the authority which all are subject to in order for equal punishment to exist. For the system to be free from injustice and infringement, there must be an enforcing body - such as the police - and the existence of the Rule of Law; the latter was argued by Aristotle: “The Rule of Law is better than the rule of any individual”. This principle was later advocated by Sir Anthony Ashley Cooper, 1st Earl of Shaftesbury whose outspoken advocacy influenced the creation of the Bill of Rights 1689 - a significant development in the law governing freedom of individuals. Thus, as Glanville Williams has alleged, the law is the “cement of society” as it profoundly influences the conduct of those who are bound by it.

Morality, however, is not subject to a formal and universal definition. Specific regional customs and cultures determine its interpretation; this can be seen with the example of a majority of Italians conceiving ‘morality’ to involve celibacy due to their Catholic heritage, in contrast to a majority in Northern Europe who generally reject this notion on the grounds of atheism and liberalism which are more developed in that region. Therefore, religion plays a significant role in an individual’s concept of right and wrong. Upon contemplating this, it is arguable that ‘morality’ is an optional code of rules and conditions which one voluntarily follows, whereas the law is a compulsory institution which all are required to respect and adhere to lest they should incur its wrath.

Early philosophers - most notably Thomas Aquinas (1225-1274) - endeavoured to link morality with law, alleging that ‘an unjust law is not a true law’. Thus, the theory of Natural Law argues that laws are invalid if they contradict morality. This chiefly relates to religious groups who allege that there is a higher authority than mere man-made law, namely God’s Law. At his trial for high treason in 1535, Sir Thomas More (1478-1535) defended himself by stating that “no temporal man may be the head of the spirituality”, thereby rejecting the law of the Treasons Act 1534 on the grounds of religion. Therefore, Natural Law theorists believe that there ought to be a relationship of substantial proximity between law and morality so that what citizens obey is in direct accordance with a higher law (external law).

Legal positivism, on the contrary, argues that there should be an exclusion of morality from the law, thus rendering a relationship between the two void. John Austin (1790-1859) and Jeremy Bentham (1748-1832) argued that the law is the command of the sovereign and so should be obeyed by all, regardless of whether it is moral or immoral. Subsequently, HLA Hart (1907-1992) demonstrated this by alleging in the 1958 Harvard Law Review that law and morals are clearly separate. Moreover, he commented that the law should have a limited role in the enforcement of morality following the publication of the 1957 Wolfenden report. Culminating from this was the Hart-Devlin Debate.

Lord Devlin (1905-1992) assumed a socially conservative stance and denounced the report by alleging: “Without shared ideas on politics, morals and ethics, no society can exist”. Thus, Devlin argued in favour of a populist moral view, advocating a relationship between law and morals to ensure social cohesion. Hart, however, advocated legal positivism by criticising the law’s interference with allegedly immoral conduct, such as homosexuality. He reflected on John Stuart Mill’s (1806-1873) ‘harm principle’ and saw that homosexual activity does not put an individual in any physical danger. Nevertheless, the debate highlighted that law and morality were still linked, and would only begin to significantly separate with the decriminalisation of homosexuality under the Sexual Offences Act 1967.

Utilitarianism was most prominently argued by John Stuart Mill. He theorised that a moral’s usefulness is determined by its contribution to utility in society. Therefore, the consequence of physical harm is conclusive proof of the moral’s validity in the law according to Mill‘s ‘harm principle‘. This has been subject to profound criticism, especially from Schur who argued that there exist some crimes which have no victims, such as abortion and pornography. Therefore, this theory enables a remote relationship between law and morality.

Arguably, the relationship between law and morality has significantly declined following the Sexual Offences Act 1967. The Warnock Committee 1984 made a statement which can debatably be seen as utilitarian: “The law itself, binding on everyone in society, whatever their beliefs is the embodiment of a common moral position. It sets out a broad framework for what is morally acceptable within society”. Although claiming to be acting under what is ‘morally acceptable’, the report was controversially justifying scientific research on embryos which is an abomination to those who advocate a strong and healthy relationship between law and morality. The case of R v R (1991) further weakened the relationship between law and morality by criminalising rape in marriage, thus negating the morally religious maxim of Genesis 3:16: “Thy desire shall be to thy husband, and he shall rule over thee”. This, therefore, is conclusive proof that secularisation has substantially diminished the relationship between law and morality.

However, there are arguably some remnant moral elements in the law which negate the ‘harm principle’ proposed by Mill. It can be assumed that the decision in R v Brown (1993) was a contradiction of the maxim ‘volenti non fit injuria’ (‘to a willing person, no harm is done’). The sado-masochistic acts of the defendants caused harm which was comparable with that of ‘personal adornment’ in R v Wilson (1996), yet the latter was acquitted; this manifests the existence of at least a remote relationship between law and morality as the decision in Brown was arguably motivated by a moral belief that the defendants’ actions were wildly unconventional and unusually dangerous sexual endeavours in the eyes of most people. That fact that both parties consented thus meant that no harm was caused, so by prosecuting them the Law was seeking to impose a specific sexual morality unto individuals, as argued by Peter Tatchell: “The State has no legitimate business invading the bedrooms of consenting adults and dictating how they should have sex”.

Moreover, the Law still retains some links with morality in its attitude towards death. The legalisation of suicide in 1961 saw some degree of separation of morality from law, but the decision in Airedale NHS Trust v Bland (1993) showed that the State had retained some moral perspective as to the power of an individual over his/her life. Subsequently in Pretty (2002) it was held that assisted suicide is illegal, thereby revealing a link to morality. The official religion of England and Wales -- Christianity -- advocates the immorality of suicide as wicked and ungodly characters such as Judas performed the deed. Furthermore, it claims that individuals should not have the right to decide their fate. This enables one to infer that the Law’s decision to disallow euthanasia is influenced by morality. It also implies that HLA Hart’s influence is not wholly substantial as there is a clear limit to individualism; Lord Devlin manifestly emerged more successful in the Hart-Devlin debate in influencing the Law in its attitude towards death because the traditional viewpoint towards assisted suicide partially remains.

Conclusively, the debate concerning law and morality is of the uttermost importance in the 21st century. To those who advocate the exclusion of morality from the Law, the debate is pivotal in increasing their freedom from an increasingly unpopular and controversial State. To those who argue the contrary, the debate is profoundly influential towards their recognition of the Law’s validity, which may culminate in an increase of social conservatives forsaking the Law to follow their morality as the State further bends its inclination to the liberal cause.

That's a really good essay You must have put a lot of effort into that, so thank you. I will also start re-writing this essay (obviosuly putting it into my own words, I don't want to copy your hard work).

hehe thanks. It only took me one lunchtime, but I think the essay seems better than it actually is due to me including some legal history and high vocabulary haha. I do not mind if you copy it to be honest; it is the purpose of this revision thread to help each other out as much as we can

Glad you think like this, always nice to have someone who's willing to help others out

Here's some notes on negligent misstatement (economic loss). If you haven't already done it, then ignore it and skim over them before learning about it. Should help you out

Negligent misstatement (economic loss)

1) There needs to be special rules to deal with pure economic loss because the law of tort doesn’t generally allow recovery of compensation for pure economic loss (financial loss that is not the result of physical injury or property damage).

2) In Spartan Steel and Alloys v Martin, compensation was recovered for the damage to the goods in production at the time of the power cut and the loss of profit that would have been made on those goods. The loss of profit (consequential economic loss) was a result of the damaged goods (physical damage). However, no damage had been caused to the products which would have been produced later that day.

3) Brentwood Council was not liable for its negligence in not ensuring that the building foundation was sound because even though the Council had approved plans for the footings, the damage suffered by C was not material or physical damage.

4) Lord Denning argued (dissenting decision) that defendants should owe a duty of care to prevent certain people suffering pure economic loss in the case of Chandler v Crane Christmas.

5) Hedley Byrne- requirements that must be fulfilled for a ‘special relationship’ to exist are 1) the defendant must possess a special skill, 2) the claimant must rely on statement to his detriment/damage/loss, 3) the reliance must be reasonable, courts regard reliance as reasonable where it is foreseeable.

6) The decision in Mutual Life v Evatt has been criticised because Mutual Life took on the responsibility of advising Evatt as to whether it was safe to invest in Palmer and implicitly indicated that he could rely on their ‘sound advice’. The narrow approach Lord Diplock took in this case was that Evatt had failed to prove that the defendants’ held itself out as possessing any special expertise to judge whether it was safe to invest in Palmer. This lead to the conclusion that ‘the defendant will thus not be liable for statements made informally or during a social situation’.

7) In Chaudhry v Prabhakar, the fact that Prabhakar had discouraged Chaudhry (friend) from getting a qualified mechanic to examine the care before buying it was a key fact in this case. By doing this, the defendant had indicated that his advice that the car was in good condition could be safely relied upon (the car was later discovered to have been in an accident).

8) In JEB Fastener v Marks Bloom and Co, the rule that was illustrated was the claimant must rely on the statement to his detriment. In this case the claimant didn’t succeed because he hadn’t relied on the advice about the value of a company’s stock.

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10) In the case of James McNaughten Papers v Hicks Anderson Co, the accountants did not owe a duty of care because the draft accounts were not prepared for their benefit, and the defendants would reasonably expect a party to a takeover to take independent advice and not rely solely on draft accounts.

11) In the case of Morgan Crucible Co v Hill Samuel, the defendant was held liable by the Court of Appeal because the defendants had made representations to the claimants, who were contemplating of taking over the company. The defendants persuaded the claimants to increase their big however, the claimants soon discovered that they’d bid too high. If proved, the claimants had an arguable claim against the defence.

12) ‘Extended Hedley Byrne’ liability is when a liability that should be imposes doesn’t fit under the negligence of economic loss (from personal injury, damage to property or a negligent misstatement). This is because there’s normally difficulty arisen when the courts clearly want to impose liability but there’s an absence of reliance on the claimants part. This has been called ‘wills cases’. This was shown in the case of Ross v Caunters, where a solicitor was liable for the claimant’s economic loss, despite there being no ‘reliance’ on the solicitor.

13) In White v Jones, Lord Geoff decided that the solicitor had to be held liable to the beneficiaries of the will and gave a leading judgement. That the problem in not allowing the claim would be that the testator and his estate would have a valid claim but have suffered no loss, while the beneficiary would have suffered a loss but have no claim. This would result in no potential claim against a negligent solicitor.

Thank you for sharing these notes; I was only just looking at this area of tort for the first time today. I am slowly but meticulously going through Occupiers' Liability and then I am going onto general negligence and psychiatric harm. I am sorry I haven't been much use on tort! I have been extremely busy with history + English courseworks, extra shifts at the pub where I work and revision for a mock exam tomorrow. I will hopefully be able to contribute to this thread more next week

Yet again, thank you for your efforts!

No problem, don't feel obligated to always post on this thread, it's obvious that someone such as yourself can't always get on TSR due to work etc. I can't emphasise how grateful I am for that model essay, made my life so much easier to have a framework

Thank you. Concepts of law is the easier section of the exam paper. Tort is incredibly tedious and tiring, and is made even worse by my joke of a teacher.

If I manage to frame my mind towards writing an essay for law and justice, I will post the marked edition on here.

That would be great, likewise I'll try posting as many question/answer format notes on here. Why is your teacher a joke lol, he/she can't be that bad? I'm making notes on A2 English Language at the moment, learning about Child Language Acquisition and how they develop their vocal/writing and listening skills Do you do English Literature?

To Pinda and anyone else who is able to answer:

I am aware that for LAW04 we receive two scenarios and we must pick one to answer from. However, does scenario 1 or 2 have content on particular areas of Tort? For example, for LAW03, scenario 2 was about involuntary manslaughter.

No. They mix areas of law and can be anything

Thanks. How did you do in January?

Not as well as I'd have liked but ah well, 87. Not re-taking though as it's too much hassle with all the tort and concepts and all my other exams. How did you do?

87 UMS? Well done! I only got 80 haha. Apparently I used too much knowledge and too little application I am retaking though.

Oooh right, well done! Yeah I think that's my problem although I do apply quite a lot... I blame it on my invigilator - she started the exam without having given us answer booklets, kept talking to us as though we should be writing (despite not having anything to write on) then after [slowly] giving them out did not re-start the time so we started 10 mins late and only had an extra couple of minutes at the end because I had an angry and stressful outburst at her when she tried to finish it early haha. It was the worst question as well, we don't get taught involuntary manslaughter and yet the question had mixed elements whilst the other was just a straight involuntary... wasn't too pleased!
Isn't the re-take like the day before the unit 4 exam? How stressful!

I was no pleased with the non-fatals scenario on section 1 either. I'm really annoyed that my teachers taught us the wrong exam technique; I went into the exam thinking that I only had to state what offence he/she was liable for and then define the offence. I therefore think it surprising that I even managed to get an A haha.

I am not too stressed about the retake as I only have to improve on the technique, whereas the knowledge is already in my head

How are you finding unit 4?

Unit 4 is going well; we've finished Tort and are moving on to the concepts section after Easter but I'm going to start early as I've already read the books. Tort is quite easy as it takes a really broad view although it's nice to go into depth anyway, just not excessively so in the exam. How are you finding it?

I'm surprised some of you guys have already finished Tort. My class is not even half way through, we've still got vicarious liability, economic loss and psychiatric damage to go through let alone concepts of law.

I guess I have to take actions and just self study then. Not impressed and confident with LAW04 Tort at all. It just seems difficult to comprehend especially with the torturous amount of cases.

Really dreading this exam

Hmm, I understand, I have terrible teachers. If I were you, I would begin slowly going over the whole of Tort from the beginning to the end and then intensely revise in lae May (this is apparently the best method; it got me a high A last year and many others, too).

The concepts questions are more creative though. You can even go onto wikipedia and find out about justice, morality, etc. I have posted a model answer for law and morals earlier on this thread if you require a guideline