Emma-121
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Noticed that law seems to be the only subject without model essays and I know that alot of people find them helpful....so thought I'd do this so they can all go in one place to avoid searching on here for hours. Feel free to add yours on if you have any for this exam.
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pcok
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Do you?
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~*Ai*~
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I've got some written essays which got 29-30/30 on Fault, Justice and Judicial creativity.
So, if any one needs one of them, pm me ^^ I can send you one.
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Nero132
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Please can you send me them? Would really appreciate it.. its my birthday tomorrow so can be my early present from you
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shazi379
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Ohhh and me plzzzz
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natmass08
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me also! ta
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Emma-121
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any of those would be great thanks...would it not be easier to just attach them to a reply on here to save you sending them to everyone individually?
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chaotik_mind
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i've sent u a pm.

3 days people!!!!!!
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~*Ai*~
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In case I forgot to reply to all the messages, here are the justice and judicial creativity essays ^^ Hope they will be useful for you guys.

Judicial creativity
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Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 “there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it?” Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation.

In precedent, judges were thought to not make new law. However, it is now recognised that they do use precedent to create new law or extent old principles in various areas. In criminal law, judges have played a major role in developing the law on intention (Vickers 1957 – intention for murder includes intention to cause GBH, later was confirmed in Cunningham 1982; or Moloney 1985, Nedrick 1986 and Woolin 1998 and the law on foresight of consequences in relation with intention). Judicial decisions have also effectively created new crime as in Shaw v. DPP (1962) – offence of conspiracy to corrupt public morals, or R v. R (1991) – rape within marriage is a crime. Also, in contract and tort law, nearly all the main rules come from cases decided by judges. Many of them were made in the last century or so but still affect today law e.g. Felthouse v. Bindley (1863) – silence can not be deemed as consent (acceptance of an offer) or the neighbourhood principles produced in Donoughue v. Stevenson (1932).

So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions. Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing judges to create law. Nevertheless, whether or not they would avoid the binding precedent depend on whether they want to follow a legal principle or to concern policy issues. Taking the law of tort to illustrate, Chadwick v. British Railways (1967) was based on policy issue, considering the well-being of society and to reward the bravery rather than discouraging it. In contrast, Bolaynds case followed the legal principle set up in Alcock (1992) without considering the Law Commission Report on changes of secondary victims.

Theoretically, judges should not get involved in policy issues but leave it to the consecutive who then seek approval from the legislature. Despite this concept, there are four main ways for them to avoid binding. Since 1966, the Practice Statement has allowed the House of Lords (HoL) to change the law if they believe that earlier case was wrongly decided to avoid injustice. They have done almost 30 occasions including the first use in a criminal case (Shivipuri (1986) – overruled Anderton v. Ryan) and also contract law (Miliangos (1976) overruled Havana Railways (1960)).
From Young case (1944), Court of Appeal (CoA) can overrule its own previous decisions and most other courts are also not bound by their own previous decisions. Since the precedent refers to the legal principle based on material facts (ratio decidende), all judges can use distinguishing. This means if the judge finds a material fact that is sufficiently different to draw a distinction from the previous cases, he is not bound by those cases. It has been used in the law on duress (Shephred 1987 was distinguished from Sharp 1987) or in intention to create legal relations in contract law (Merrit v. Merrit 1971 and Balfour v. Balfour). Distinguishing is often used in tort cases. Read v. J Lyons & Co. (1977) was distinguished from Rylands v. Fletcher (1868) in that nothing escaped from the land and Evans v. Triplex Safety Glass Co Ltd (1938) from Donoughue v. Stevenson (1932) as there was other potential causes of the failure of the product.

In statutory interpretation, judges are asked to decide the precise meaning of words in an Act of Parliament. Some follow the literal rule which states that the words should be given their plain, ordinary, grammatical meaning as in Oxford Dictionaries. The Mischief Rule (1584) gives judges more discretion than Literal rule. The judges should look to see what the law was before the Act was passed in order to find the gaps the Act was intended to cover. This rule was used in Smith v. Hughes (1960) to decide that prostitutes who were calling from a house were soliciting in public.

Recently, judges use the purposive approach to see what the gap was in the old law and decide that they believe Parliament meant to achieve. Lord Denning used it in Magor and St Mellons case (1950). However, in the appeal case in the HoL. Lord Simons criticised this approach and pointed out that “if a gap is disclosed, the remedy lies in an amending Act”. This highlights the conflicts between whether the judges should make law or apply it only. The fact that there are different rules means it is difficult to predict which will be taken in a case.

On the other hand, occasionally, judges may intentionally use the literal approach to point out an error in the law for Parliament to amend (Whiteley v. Chappel 1868 – on the phase “any person entitled to vote”. If different rules are used, the outcome would be different – not letting the offender off but also not influencing the Parliament to amend the law. Also, in Royal College of Nursing v. DHSS (1981) the purposive approach was used, concerning the intention of Abortion Act 1967 i.e. women should have abortion (if needed) in a safe environment rather than backstreet one. What would happen if the literal rule was used? The use of the rules also depends on the favour of judges which may lead to inconsistency in judicial e.g. Lord Parker in Smith v. Hughes and Fisher v. Bell. It is criticised that judges use the rules to bring the outcome he prefers.

The rules have allowed judges for flexibility to decide the cases but they are often criticised as giving too much freedom to change the law to suit policy consideration e.g. R v. O’ Grady (1987). Although judicial creativity allows judges to respond immediately to the problems before them (R v. Children 2000) which might take years for Parliament to make new law, or helps to develop the law to catch up with technology development (intellectual properties law) or protects the individual (R v. R 1991), since judges are not democratically elected by public, their roles should just be to apply the law (Bellinger v. Bellinger 2001). Another problem with judges involving in making law is that the decisions are given in a short time period and they do not involve in the lengthy debates/consultation by the Parliament. Thus, they may not make rules appropriate to all situations (Morgan v. Launchbury 1972). More importantly, judicial creativity appears to be lack of consistency. Judges can overrule or reverse the previous decisions (Pepper v. Hart (1993) reversed Davis v Johnson (1974) on the use of hansard.)

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.


Justice
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Justice literally means ‘the quality of being morally right and fair’ (Oxford Dictionary). Generally, one would assume that the whole purpose of law is to promote justice. However, there are may varied theories on this relationship and first, it is necessary to consider them in terms of procedural and substantive justice.

Procedural justice, which is favoured by the Conservative party, is concerned with the methods and procedures in place for making decisions and allocating goods and services. Under the Conservative Government, as long as these procedures are fair and everyone has an equal chance to get access to the law, the system can be seen as formally just. Nevertheless, this may lead to injustice due to the rigid application of the law (e.g. stare decisis). For instance, married women before the landmark case of R v. R (1991), which employed the Practice Statement to alter a 200-year-old rule, may be treated unjustly by the law. By having marital status, they were being denied the protection that was offered to every other woman against being raped. Concrete justice, in contrast, is preferred by the ‘old’ Labour party which developed on the rule of equity i.e. justice in its simplest sense is based on fair and equal treatments (Eves v. Eves 1975).

The first theory of law and justice comes from natural law. It is a strange concept since different views can be taken on what the natural source is. Aristotle believed that it could be found in nature while St Thomas Aquinas sees God as the natural souse of law. The logical extension of this is that it is permissible to break the legal rules if they fail to conform to moral laws (excluding the case when it would lead to social disruption). Thus, the law in a philosophy view would promote justice. Followers of this idea would include Professor LL Fuller, Lord Devlin or against it like Lord Hart who link the idea of justice to that of morality (R v. Reeves 1964). Here, the overlap between justice and the reflection of law in morality would come in. Should the law reflect morality but ignore justice?

Utilitarianism is a philosophy that developed in the 19th Century predominantly from Bentham and John Stuart Mill whereby the fundamental object of justice is the maximisation of human happiness. On this basis, it is unjust to prohibit private acts of immorality since they cause harm to no one and increase pleasure.

From an economic point of view, a Government that supports capitalism will tend to interfere with individual rights in a minimal way and be protective of property rights whereas, the Marxist views of justice are based on the redistribution of wealth to everyone. In ‘Anarchy State and Utopia’, Nozick claimed that a just society was one in which individual rights were accorded the respect due to them. States evolved for the purpose of protecting its members’ natural rights. Clearly, all economic views of justice present problems. The problem of trying to balance purely economic considerations with notions of justice is that what may be just for society may be unjust for individual and vice versa (Re B 1996). Basic rights can also be affected by economic considerations (R v. Gloucestershire County Council ex Parte Barry 1997).

So, to what extent does the law achieve justice? Although it would be an aim for all legal system, the law does not always achieve justice. Clearly, the ability of legal system to do so depends on certain potentially conflicting factors i.e. procedural justice and substantive justice. The former can be seen in a number of areas such as sentencing policy or the means of assessing quantum of damages in civil law. However, the need to give justice to meet individual’s situations or at least to avoid injustice is one of the principles behind the introduction of the Practice Statement 1966. B R Board v. Herrington (1972) and R v. R (1991) are two examples of it being used for this purpose. Equity is another example where rules developed when the common law would lead to injustice. The problem with these two factors is that they tend to be mutually exclusive. Injustice may be created by ignoring the individual situation like Ahluwalia (1992) – applying the law of provocation.

Criminal law has to meet the concept of justice all the time or else no one would show any respect to it. The pursuit of justice then is displayed in a number of ways. One of them is to grade crimes according to their seriousness. In this way, by taking considerations of factors such as Mens Rea, the extent to which it damages social benefits or interferes with personal right. Thus, murder is the worst due to its wickedness or battery that causes ABH is worse than causes bruises only. Another way is through the sentencing policy that reflects both the seriousness of crime and the factors such as first offence or repeated one. For example, retribution directs to most serious crimes whereas rehabilitation seeks to reform the criminal if possible. Sentencing represents the view that if the criminal is to reform, he must be dealt with fairly and proportionately, based on the nature of crime committed. The development of crime surveys and the use of victim impact statements demonstrate that there is a need to be fair to the victims also. The use of strict liability in crimes illustrates the fact that Parliament recognises the standard of proof is not appropriate to achieve justice in every situation. In contrast, it may lead to injustice in certain cases (Sweet v. Parsley). Another example of injustice is the case of E v. DPP (2005). By prosecuting the D, the state was criminalising his behaviour and treating the girl as victim when it was not, in fact, the situation. This is also an example of procedure justice.

Besides, there are problems that lead to injustice in the law caused by the factors that are thought to be fair e.g. the jury. The risk of racial bias (Gregory and Sanders) or the secrecy of the jury room (Young case) is questionable. Also, the influences of media on the jury (Bowyer and Woodgate trial) may result in injustice.

In tort, before the judgement of Lord Atkin in Donoghue v. Stevenson (1932), the ‘contact fallacy’ rules and there was no generally Duty of Care (D.O.C) and little chances of remedies. The case not only did secure a remedy for claimant but the ‘neighbour principle’ also helps to identify other D.O.C situations and the development of tort of negligence leading to justice in many individual cases. The tort of nuisance allows for protection and justice against the unreasonable use of land and etc.

Nevertheless, one way in which tort very often produces injustice or not real justice is in the remedies available. Sometimes, money is not an appropriate way to bring justice. Indeed, remedies such as injunctions are clearly aimed at representing justices in certain cases. This is also true with contract law in the case of Hadley v. Baxendale 1854 or Victoria Laundry v. Newman industries 1949. Moreover, those who see capitalist as unjust would prefer the Acts in contract law such as the Sale of Goods Acts 1974 or the Unfair Contact Terms Act 1977 as a just way to protect the customers. What is interesting about Consumer Protection is that it comes from Europe which is capitalist based. These laws are clear examples of substantive justice.

It is true that important aim of law is to ensure justice for both society and individuals. However, it is an obvious fact that one can not please all. The way the court use to achieve justice may be, in fact, depends on the Government i.e. the political party that is in power. For instance, the ‘new’ Labour party led by Prime Minister Gordon Brown is toward procedural justice.

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~*Ai*~
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Fault

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Fault as a concept in whichever area of law is a way of describing legal blame and responsibility. The basic principle is that a defendant (D) should be able to foresee the harm caused by his actions and aims to avoid such. Fault is a way the courts aim to achieve justice or at least balance to loss suffered by the victim against the sanction imposed by the D.

In criminal law, the requirement of Mens Rea (MR) is used to decide whether a D has intent when he commits the act and is at fault for his crime. In contract law, the person who breaches a contract is liable and in tort, foreseeable is appropriate in all aspects of negligence. Theoretically, fault liability requires intention or a conscious failure to take care by the D. However, the courts have developed the strict liability offences where state of mind is not taken into account when finding the D is at fault. For instance, in criminal law, when the protection of society in general is taken into consideration, MR is not needed to prove the culpability of the D who might not be at fault anyway. The Storkwain Ltd case (1986) regarding the prevention of unauthorized drugs is an example. Further example is that of G (2006) when the D was charged under s5 of Sexual Offences Act 2003 with rape of a child under 13, even though he did believe on reasonable grounds that the V was 15. In contract law, strict liability can be found in the Sale of Goods Act 1979 (amended) or in the Supply of Goods and Services Act 1982. The use of vicarious liability in tort ensures that the employer is liable for his employee’s negligence whether or not he knows or commits the tort (Poland v. Pars 1927) or Rylands v. Fletcher (1868) imposed the liability of a man bringing things onto his land.

The big question is that is fault an essential part of the English law. The legal presumption is that there should be “no liability without the proof of fault”. It is needed to note that in criminal law, the D remains “innocent until proven guilty” and in order to prove his fault, the prosecutors must do it ‘beyond any reasonable doubt’. Thus, it can be seen that fault is extremely important in this area. To prove a person guilty of an offence, both Actus Reus (AR) and MR are required. The AR is the physical element which includes a voluntary act (Hill v. Baxter) or an omission (failure to act – R v. Millers 1983). It requires the proof of a factual link between the act and the end result (R v. White 1910) and the act must be substantive enough to make the end result reasonably foreseeable (R v. Roberts) or else the D is not liable. The proof of a break in chain of causation will remove fault and results in an acquittal (R v. Blaue).

MR can be seen as the main ‘fault’ element of the offences based on which the law divides different levels of fault. The highest is where specific intention is possessed by the D e.g. murder or to cause GBH (s.18 Offence against the Person Act 1861). Recklessness involves fault in the sense that D has foreseen the risks of a consequence of his actions. This level is sufficient for s47 OAPA 1861 (R v. Ireland 1997 or Chan-Fook 1994). Negligence is based on what the reasonable man would foresee. Gross negligence resulting in involuntary manslaughter is at a higher level than just negligence (Bateman 1925)

There are various defences available in the criminal law which can reduce or eliminate fault. These are said to allow the element of doubt in the law which is strictly on the basic beyond reasonable doubt. For instance, defence of mistake can eliminate fault so that D is not found guilty (Williams 1987). Some defences reduce liability only. The main examples of these are dismished responsibility, provocation a suicide pact set out in the Homicide Act 1957. If succeeds, D is not guilty of murder but instead, voluntary manslaughter. The importance of this is that the judge can give less serious sentence than life imprisonment from less blame worthy D than those who deliberately kills (Byrne 1960).

Another way that this difference in levels of fault is available is through the sentencing with the exaggerating and mitigating factors. The sentence can either be heavier or lighter. From this, it can be seen that fault plays a central role in sentencing an offender. However, should there be strict liability or fault without liability? The case of Sweet v. Parsley suggests that this may lead to problem in the law in which people who are completely innocent may be convicted as mentioned above.

Fault is a concept that is particularly relevant to the law of tort although it is not as important as in criminal since the tort of negligence is imposed on the balance of probability. This difference can be explained by the differences in the sanctions i.e. in tort, there are remedies such as money rather than sentencing. In negligence, D will not be liable unless the Claimant (C) can also show fault by demonstrating that the D owed the C a D.O.C (which he has breached by falling below the standard of care of a ‘reasonable person’ (the Caparo test is applied). The D must act to avoid foreseeable farm (Donoghue v. Stevenson 1932) to his neighbour. Professionals are measured according to their own standard (Bolam 1957). Damages will only be awarded when the damage is not too remote a consequence of breach (The Wagon Mount (no 1) 1961).

Fault can also be found in Occupiers’ liability under the 1957 Act which is basically that the D is liable because he creates a foreseeable harm casing the visitor damage or injury (Moloney v. Lambeth LBC 1966). Also, in nuisance, fault can be diagnosed where malice is an issue from either the D or C (Christie v. Davey 1893). Even in vicarious liability which is a form of strict liability, an employer is at fault for the tort of his employees as he is bound to hire appropriate staff and has control over their actions during the course of their employment. Problem is that is this fair or not? Public protection once again is considered here.

In general, although there has been suggestion for the reform of fault liability as it seems to be unfair to V (secondary victims – Alcock 1992 or cases of medical negligence) or even D, the use of fault in law is said to be essential to maintain a just system.
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natmass08
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tskkkkkkkk i thought everybody posting essays on here were really clever until i started reading Jackie M.....basically everyone re-jigs her book into their essay lol nowt wrong with it just saying....i thought you were superiorly clever
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chaotik_mind
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still an excellent essay though.
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pcok
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Lol I noticed that when reading the psychology essays, they're just the book copied out lol.
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~*Ai*~
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that's the shortest way to get full marks, lol :P
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pcok
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(Original post by ~*Ai*~)
Fault

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Fault as a concept in whichever area of law is a way of describing legal blame and responsibility. The basic principle is that a defendant (D) should be able to foresee the harm caused by his actions and aims to avoid such. Fault is a way the courts aim to achieve justice or at least balance to loss suffered by the victim against the sanction imposed by the D.

In criminal law, the requirement of Mens Rea (MR) is used to decide whether a D has intent when he commits the act and is at fault for his crime. In contract law, the person who breaches a contract is liable and in tort, foreseeable is appropriate in all aspects of negligence. Theoretically, fault liability requires intention or a conscious failure to take care by the D. However, the courts have developed the strict liability offences where state of mind is not taken into account when finding the D is at fault. For instance, in criminal law, when the protection of society in general is taken into consideration, MR is not needed to prove the culpability of the D who might not be at fault anyway. The Storkwain Ltd case (1986) regarding the prevention of unauthorized drugs is an example. Further example is that of G (2006) when the D was charged under s5 of Sexual Offences Act 2003 with rape of a child under 13, even though he did believe on reasonable grounds that the V was 15. In contract law, strict liability can be found in the Sale of Goods Act 1979 (amended) or in the Supply of Goods and Services Act 1982. The use of vicarious liability in tort ensures that the employer is liable for his employee’s negligence whether or not he knows or commits the tort (Poland v. Pars 1927) or Rylands v. Fletcher (1868) imposed the liability of a man bringing things onto his land.

The big question is that is fault an essential part of the English law. The legal presumption is that there should be “no liability without the proof of fault”. It is needed to note that in criminal law, the D remains “innocent until proven guilty” and in order to prove his fault, the prosecutors must do it ‘beyond any reasonable doubt’. Thus, it can be seen that fault is extremely important in this area. To prove a person guilty of an offence, both Actus Reus (AR) and MR are required. The AR is the physical element which includes a voluntary act (Hill v. Baxter) or an omission (failure to act – R v. Millers 1983). It requires the proof of a factual link between the act and the end result (R v. White 1910) and the act must be substantive enough to make the end result reasonably foreseeable (R v. Roberts) or else the D is not liable. The proof of a break in chain of causation will remove fault and results in an acquittal (R v. Blaue).

MR can be seen as the main ‘fault’ element of the offences based on which the law divides different levels of fault. The highest is where specific intention is possessed by the D e.g. murder or to cause GBH (s.18 Offence against the Person Act 1861). Recklessness involves fault in the sense that D has foreseen the risks of a consequence of his actions. This level is sufficient for s47 OAPA 1861 (R v. Ireland 1997 or Chan-Fook 1994). Negligence is based on what the reasonable man would foresee. Gross negligence resulting in involuntary manslaughter is at a higher level than just negligence (Bateman 1925)

There are various defences available in the criminal law which can reduce or eliminate fault. These are said to allow the element of doubt in the law which is strictly on the basic beyond reasonable doubt. For instance, defence of mistake can eliminate fault so that D is not found guilty (Williams 1987). Some defences reduce liability only. The main examples of these are dismished responsibility, provocation a suicide pact set out in the Homicide Act 1957. If succeeds, D is not guilty of murder but instead, voluntary manslaughter. The importance of this is that the judge can give less serious sentence than life imprisonment from less blame worthy D than those who deliberately kills (Byrne 1960).

Another way that this difference in levels of fault is available is through the sentencing with the exaggerating and mitigating factors. The sentence can either be heavier or lighter. From this, it can be seen that fault plays a central role in sentencing an offender. However, should there be strict liability or fault without liability? The case of Sweet v. Parsley suggests that this may lead to problem in the law in which people who are completely innocent may be convicted as mentioned above.

Fault is a concept that is particularly relevant to the law of tort although it is not as important as in criminal since the tort of negligence is imposed on the balance of probability. This difference can be explained by the differences in the sanctions i.e. in tort, there are remedies such as money rather than sentencing. In negligence, D will not be liable unless the Claimant (C) can also show fault by demonstrating that the D owed the C a D.O.C (which he has breached by falling below the standard of care of a ‘reasonable person’ (the Caparo test is applied). The D must act to avoid foreseeable farm (Donoghue v. Stevenson 1932) to his neighbour. Professionals are measured according to their own standard (Bolam 1957). Damages will only be awarded when the damage is not too remote a consequence of breach (The Wagon Mount (no 1) 1961).

Fault can also be found in Occupiers’ liability under the 1957 Act which is basically that the D is liable because he creates a foreseeable harm casing the visitor damage or injury (Moloney v. Lambeth LBC 1966). Also, in nuisance, fault can be diagnosed where malice is an issue from either the D or C (Christie v. Davey 1893). Even in vicarious liability which is a form of strict liability, an employer is at fault for the tort of his employees as he is bound to hire appropriate staff and has control over their actions during the course of their employment. Problem is that is this fair or not? Public protection once again is considered here.

In general, although there has been suggestion for the reform of fault liability as it seems to be unfair to V (secondary victims – Alcock 1992 or cases of medical negligence) or even D, the use of fault in law is said to be essential to maintain a just system.
Random question but are we allowed to say defendant (D) and then use D throughout the essay? I usually do this for things like House of Lords (HL), Court of Appeal (CA), grevious bodlily harm (GBH), but didn't know we could do it for defendant and victim. Or is that just your shorthand whilst typing the essay?
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giospurs
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They're hardly gonna care are they, especially if you do "defendant (D)" first. That's what I always do. Anyway, to that person who talked about rejigging your book into your essay. Why wouldn't you? You're wasting your time if your making it all up yourself.
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natmass08
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I did say there's nowt wrong with it, just that i thought they'd structured it all themselves really well
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pcok
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(Original post by giospurs)
They're hardly gonna care are they, especially if you do "defendant (D)" first. That's what I always do. Anyway, to that person who talked about rejigging your book into your essay. Why wouldn't you? You're wasting your time if your making it all up yourself.
Hmm the only thing is, if you're gonna have an essay that the examiner has read a hundred times that won't do you any favours. I like to use a variety of sources to create an original essay. Having said that, I have clearly not left myself enough time to do that, which is why I think I'm struggling. I might just "copy" the latter half of the morality section of the book. Law and fault is coming along nicely though.
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~*Ai*~
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^^

Well, I don't think they will have a problem with that at all.

I use books a lot since English is not my first language. I mean without those books, I could not know the right words to put in, right?

And that helps lots ^^ Evidence is I only need a few marks in this exam to get an A ^^
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Richmond123
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wot was the name of the book that you used, it cld hep me alot
cheers
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