FE1 Exam Thread (Read 1st post!) NOTICE: YOU MAY SWAP EXAM GRIDS

LawBoy2018 wrote: »

Does any legend want to give me a short breakdown of the cases they'd use + the relevant law for a PQ in Vicarious Liability? Or even have an up to date sample answer that I could use? Freaking out I will help you in any way I can

Hi ya
I can’t sleep so I will give it a try. I am only covering vicarious liability briefly so here we go:
Vicarious liability: the principle that makes a 3rd party liable for the act of a separate wrongdoer. Note that control over tortfeasor is essential.

Salmond principle: A master is liable for the act he had not authorised, as long the act is connected with an act he had authorised. Salmond principle was adopted in the case of Lynch v Binacle 2011.

Moynihan v Moynihan: Sc grandmother was liable for act of daughter who left teapot unattended within reach of granddaughter.

Note: head of household was the basis for liability no dependent on family relationships.

So two issues to consider:
1. Is there a relationship of control or akin to employment
2. Is the tortious act within the relationship of control

Is there a master/servant relationship
Phelan v Coilte: plaintiff worked for def and was paid hourly rate, he paid his own taxes, supplied his own tools and no paid holidays. The court held that there was a master/ servant relationship and found employer liable.
But in
Carrol v Post national lottery: the court found that there wasn’t a master/ servant relationship. Plaintiff worked in a shop where lottery was sold.

Is act within relationship of control

If not, then there is no vicarious liability

Smith v stages: Two employees send to do work far away. Travel expenses covered by employer. Employees left work early and were in a car accident. The court founo that employees were within employers hours and was vicarious liable.
Boyle v Ferguson: employee was car salesman. Was allowed to take car with him all the time to promote business, fuel was paid by employer. One night he was out with two women and had a car accident. The court found employer vicariously liable.

The test is whether the employee is doing what he is employed to do.
If the act is not connected with employment then is a Frolic.

Daniels v whets: bouncer Woking in a nightclub, assaulted plaintiff twice. The court held that the first act was within scope of employment but the second act was a frolic not in connection with employment.

Usual questions that come are when an employee commits a tort while at work. One of the questions that came up was about an ambulance guy a girl had an accident and he used her phone to call her father. It turned out it wasn’t her phone and rang the wrong guy he was in shock and the question considered was whether who was liable the employer of the ambulance guy or not.

Initially when reading the question I thought it was about nervous shock so if in doubt just consider the two issues just in case.

Also consider the sexual abuse cases

Bazsley v curry Canada 1999 ct held that vicarious liability is appropriate where there is a CLOSE CONNECTION between the creation or enhancement of a risk and the wrongs that acrue therefrom, even if related to employers desire.

Delahunty v southern health board
Master of an orphanage sexually assaulted a visitor the court held that there was no strong connection but result would have been different if he had assaulted an inmate.

Lister v hasley the court found that there was a close connection. Must be a connection between the duties of employee and tort committed.

O’Keffe v Hickey sexually assaulted by teacher court applied the close connection test.

More recently court adopted the close connection test in the case of Elmontem v Nethercross 2014.

That’s all I got. I hope it helps.

Townton wrote: »

What are cities predictions for the case notes in constitutional? If anyone is in the know.

I'm interested to know this also

Robbo wrote: »

You're looking at a stronger test than Campus for a QT injunction as the case law suggests a strong probability that the apprehended mischief will occur. This is beyond the "fair/bona fide question to be tried" threshold.

I'd lean towards the test being more along the lines of "strong case" threshold test from Maha Lingham. This also ties in with the higher evidential standard required to grant a QT injunction.

Any chance you have a sample quia timet answer so I can wrap my head around answering it?

I've literally just learned off the notes from my manual but am clueless as to how to actually apply it a scenario.

jewels652 wrote: »

Hi ya

O’Keffe v Hickey sexually assaulted by teacher court applied the close connection test.


That’s all I got. I hope it helps.

Just in relation to O'Keefe. The close connection test whilst discussed heavily in the case this Canadian approach was actually rejected, with Hardiman J saying it wasn't principled and not strict enough given the facts of the case.

Any property solutions please? Have other constitutional, equity, property materials to swap

nailforhammer wrote: »

Just in relation to O'Keefe. The close connection test whilst discussed heavily in the case this Canadian approach was actually rejected, with Hardiman J saying it wasn't principled and not strict enough given the facts of the case.

It was rejected by Hardiman J, however it was accepted by Fennelly J, Murray CJ and Denham J concurring. Also the SC in Hickey v McGowan noted that it was accepted in O' Keefe.

My manual is extremely misleading however as it gives much more weight to Hardiman's approach. But I think that might be because the manual was before Hickey confirmed the close-connection test so that might be why.

My memorising of cases for Tort has not gone at all to plan, disaster. Gunna have to take some massive risks and hope I get lucky.

Focusing on:

Vicarious
Occupiers
Products
Nuisance/Rylands
Passing Off
Medical Negligence
Trespass to Person
General Negligence

Gunna be a seriously high chance I won't be able to answer 5!!

Natalie_06 wrote: »

Any property solutions please? Have other constitutional, equity, property materials to swap

Could I have some constitutional solutions I only have the examiners report in property to swap

iamanengine wrote: »

My memorising of cases for Tort has not gone at all to plan, disaster. Gunna have to take some massive risks and hope I get lucky.

Focusing on:

Vicarious
Occupiers
Products
Nuisance/Rylands
Passing Off
Medical Negligence
Trespass to Person
General Negligence

Gunna be a seriously high chance I won't be able to answer 5!!

I'd be surprised (and in trouble myself) if that didn't cover you

holliek wrote: »

actually seems a good question and I scarily don't know the answer either! Are they fixed or floating charges? I assume they'll have to be registered as all charges now have to be. Otherwise it'd be a hidden charge which isn't allowed since 2014

holliek wrote: »

Little confused on retention of title clauses.. Just looked the 2015 Q8 (part A) which discusses upon liquidation what would occur to materials if they were sold under an all sums due clause. The manuals only seem to discuss the characteristics about the clause but I can't figure out what happens to the materials or goods in this case or if it was one of the other 3 types of clauses

I'm going to avoid it as best I can, will likely only be a real issue if they mention in a problem question that its specifically a charge over a bank account. Reading over Hutchinson the last while and far less tired book debts are registerable as either floating charges or fixed charges because they satisfy the criteria of a mortgage or a charge under George v Illingsworth, it can be a fixed charge over book debt if the book debt is specified to go into a specific bank account you can't withdraw out of without the lenders permission. You don't have a charge over the account, you have a charge over the book debts which happens to be fixed and secure because it's in an account as best as I can tell. Does that make sense? I think it does? So just don't bring the S 408 complications into it if they can be avoided!

I haven't got the manuals so I can only do my best with this, and ROT really isn't my strongest. But if its merely a contractual ROT of unworked products like in Clough Mill v Martin in the first clause or in Kruppstahl where they said the unworked steel was still theres but the worked was gone as they needed to register that charge then you're ok.

All sums due are a much higher bar, a bit like the book debt spoken of above, in Carroll v JF Bourke (maybe?) they seemed to suggest that a simple all sums due clause was not enough and in Unitherm heating they suggested that simply saying they retained beneficial ownership over the sums from the selling was not enough without actually providing a means to protect it - like a specific bank account. Courtney himself thinks that's the death knell for such clauses I read somewhere too.

What does the manual say the three types are?

Robbo wrote: »

You're looking at a stronger test than Campus for a QT injunction as the case law suggests a strong probability that the apprehended mischief will occur. This is beyond the "fair/bona fide question to be tried" threshold.

I'd lean towards the test being more along the lines of "strong case" threshold test from Maha Lingham. This also ties in with the higher evidential standard required to grant a QT injunction.

For sure, a couple commentators have said it should theoretically be the same standard but simply down to the fact that it usually hasn't happened yet they say the evidence is harder to establish so in effect (and seen in all the case law) you need to prove the mischief will occur quite probably.

Contract people

Probably silly of me to post about this but just going through the October 2016 sitting and finding it difficult to see how I would have been able to answer 5 questions - In yer opinions was it a difficult sitting? Or am I just really underprepared....

Craobh Rua Lua wrote: »

Hi all, would really appreciate some guidance as I am so nervous about torts. Does this look sufficient:
Ordinary duty of care, standard of care, causation and remoteness with res ipsa,
Defamation
Occupiers’ liability
Nuisance and RvF
Nervous shock and pure economic loss
Passing off
Contributory negligence essay
Concurrent wrongdoers essay
Trespass
Damages
Vicarious liability

I'd be shocked if that wasn't enough.

holliek wrote: »

So I have that there are 4 types of ROTC - simple retention; proceeds of sale; aggregation ROTC and all sums due.

What does the aggregation entail? Jesus there's a lot of blurred lines there for me, I don't fancy ROT that much.