Law AQA Unit 4 OFFICIAL THREAD 17th MayWatch
I hope justice and judicial creativity comes up !!
June 2012: Fault, Justice and Balancing conflicts
June 2013: Judicial creativity, fault and judicial creativity
Cant see fault coming up to be fair if it does it will be 3 years on a trot ??
Not even much off a pattern really
1) Under the Law Reform Act 1945, damages may be reduced where the claimant has helped cause his own damage.
2) It must be shown that the claimant failed to take proper care of himself. This failure must have caused the injury or damage. (Woods v Davidson)
1) Defendant will not be liable where there is a voluntary assumption of the risk.
2) Must be; knowledge of precise risk involved, free choice by claimant, voluntary acceptance of the risk.
3) The actual risk must be consented to and not just in general. (Smith v Baker)
4) Appropriate to sport where incident falls within rules of game. (Simms v Leigh)
5) Appropriate to doctors where they require the patient's consent.
Sounds similar to me- left all my unit 4 revision until after Thursdays exam so I'm feeling the pressure to cram everything in. Counting on balancing conflicting interests to come up since it's the only one I've taken a look at. But it does seem like there's actually time to think in this exam opposed to the last! Not sure how long we should be taking on each question though, 40 minutes each?
I always prepare for my exams pretty well. I started full swing revision for unit 3 around January and for unit 4 around March so I am certainly prepared - I just hate the other three subjects of fault morality and balancing conflicts so I have opted to risk it especially when fault has come up twice in a row and balancing hasn't come up in a while.
So i think balancing will come up, fault won't and then there's only 3 left morals judicial and justice and I have revised two of those so let's hope.
its for judicial creativity.
Under the theory of separation of powers, parliaments are required to make law and the judiciary apply the law set by parliament. However, many feel that judges in fact do make laws and extend old principles. Lord Radcliffe pointed out that, “There has never been a more sterile controversy as to whether judges make law. Of course he does, how can he help it ?”. It is now recognised that judges in fact do make law and extend old principles through judicial precedent and statutory interpretation.
Under the doctrine of precedent judges are required to follow precedents and laws that have been set or decided in previous cases. This means that all lower courts are bounded by their higher courts and the court of appeal is bounded by its own decisions, despite Lord Dennings effort to free it. From this it would seem that judges are restricted to being creative, however this is not the case. In Criminal law judges have played a major role in the development of intention. For instance judicial decisions in R v Vickers and R v Cunningham extended the men’s rea of murder so that intention to commit GBH was sufficient. Furthermore judges have developed the concept of ‘foresight of consequences’ through cases such as Nedrick, Woolin and Maloney. Judges are now recognised to make new law, for example conspiracy to corrupt public morals (Shaw v DPP) and in R v R, judges used the practice statement to give protection for married women with regards to rape. Interestingly, in contract and tort law many of the legal principles and rules have developed through judicial decision. For example in Felthouse v Brindley it was held that silence is not a valid form of acceptance and in Donogue v Stevenson the neighbour principle was developed.
In 1966 the Practice Statement was produced and this allowed the House of Lords virtually unlimited power to change or decide differently from previous precedents, if they felt that decision would cause injustice. The practice statement was first used in criminal law with regards to the case of R v Shivpuri, which overruled R v Anderton. Furthermore the practice statement was again used on the topic that duress was not a defence for murder. (R v Howe overruled R v Lynch). In addition to this, the practice statement was again used on the law of contract with regards to B R v Herrington.
From the decision in Young v Bristol Aeroplanes it would seem that the court of appeal is able to overrule its own decisions. Since precedent refers to the legal principle based on material facts (ratio decidendi) judges are able to distinguish differences between cases. For example if the judge feels that a material fact so different in one case to another, then he is able to come to a different verdict. An example of this process of distinguishing being used is on the law of duress, whereby R v Shepherd overruled R v Sharp. This was also used in contract law, whereby Merrit v Merrit overrule Belfon v Belfon. Judges are also able to used the process of reversing. For example if a lower courts come to a decision and then in the appeal case the higher court feel that the lower court were wrong, then the judge is able to reverse the lower courts decision, as seen in the case of Tomlinson v Congleton.
In statutory interpretation judges are asked to decide the precise meaning of words in an act of parliament. Judges also have aids in order to help them define a word such as, a law commission report which the act was based on. Through statutory interpretation judges can use various rules such as the literal, mischief or golden rule and the purposive approach.
The literal rule states that a judge must give words the exact meaning according to the oxford dictionary, however this rule restricts judges from being creative. Some judges will use the rule on purpose to outline problems within the law to parliament. (Whitley v Chappell). In Fisher v Bell it was held that a flick knife, which was displayed in a shop window, was not for sale as under contract law a display in a shop window is merely an invitation to treat. However, in terms of the literal rule, if something is advertised in a shop window then it is normally up for sale and this a danger to society.
Judges can also use the golden rule, which is used when an application of the literal would lead to absurd or a repugnant outcome, so the courts would apply a second meaning. (Sigsworth).
Other judges will often opt to use either the purposive approach or the mischief rule; due to the fact these two approached allow judges far greater creativity. However opponents of these two approaches such as Viscount Simmons hold the view that they usurp the role of parliament. On the other hand, Lord Denning argued that it was the role of the judiciary to fill in gaps in an act of parliament and look for what parliament intended to say. Denning, used the purposive approach in Magor and St Mellons, yet in the appeal case Lord Simmons held the view that if a gap is disclosed that a remedy lies within an amending act. This animosity between judges makes many ponder whether judges should make law, as many judges use different approaches in order to achieve the result they want. The mischief rule is whereby judges will look at the law before the act was passed and fill in gaps the act intended to cover. This allows judges great creativity and was used in the case of Smith v Hughes to decide that prostitutes who were calling from a house were soliciting in public.
It is without a doubt that parliament has more power than judges; evident in the fact they are able to undergo extensive research on an area of law they wish to reform and legislate whenever they want. Judges, on the other hand have to wait for a suitable case and can only decide or come to a verdict on the evidence presented to them. However, parliament tends to take a very long time on legislating in comparison to judges who can come to a decision quickly. Nevertheless this quick decision-making has come under much scrutiny over the years as seen in the case of R v Bellinger, where judges could make haste decisions. A redeeming factor of judges creating precedent is the fact that judges are able to develop law in a way that correlates with society. For example the decision in R v Dica – knowingly giving someone a life threatening disease is illegal, correlated with the ideology that society wanted such a law to be present. Despite this, judges are not democratically elected and many feel that there role should that which is held in the theory of separation of powers, which is only to apply the law. (Re S).
Whether judges should make law or not, they inevitably do. However, generally their decisions help to develop the law correctly and they do respect the sovereignty of Parliament and are content to leave the policy matters to the elected legislature.
LAW04 defo gonna learn all three! :'(
the scenario was hideous
1. was OLA 57 & 84
2. Product Liability & Nervous Shock
I only did OLA 57 which most likely messed up, missed OLA 84
done product Liability and only started Nervous shock.
but essay i did really well.