private law – University of Bristol Law School Blog

Sound Scholarship

Posted on November 1, 2019November 1, 2019 by lee.mcconnell

By Dr Chathuni Jayathilaka and Prof Gwen Seabourne, Centre for Law and Historical Research (University of Bristol Law School)

Although based in England, the Law School is home to experts on a variety of different jurisdictions – for example, Dr Chathuni Jayathilaka, who teaches contract, commercial comparative and Roman law is a specialist on Scots private law and Scots Legal History. She has recently published a monograph entitled Sale and the Implied Warranty of Soundness and here, she explains it to Gwen Seabourne of the Centre for Law and History Research.

GS: So, Chathuni, tell us about your new book (with translation for common lawyers!). It’s about a topic in Scots private law, isn’t it?

CJ: Yes. Sale and the Implied Warranty of Soundness deals with an under-researched area of Scots law: the common law contract of sale. This contract, which still regulates transactions featuring real property (i.e. land) and intangible property, has been subjected to little analysis in the past two centuries. The last book on this topic, Mungo Brown’s A Treatise on the Law of Sale, was published almost 200 years ago, in 1821.

As a result, there are a number of gaps in knowledge in this area. One of the major issues is that the default rules which apply under the Scots common law contract of sale have never been coherently systematised. Another is that it is not clear whether the same default rules applied to all contracts of sale, regardless of whether the property involved was real, personal or intangible. Historically, a number of the default rules developed exclusively through case law featuring one type of property, and there is disagreement about whether such rules apply to transactions featuring other types of property. (more…)

Does X mark the spot?

Posted on June 18, 2019June 18, 2019 by lee.mcconnell

UK Supreme Court clarifies when local authorities have a duty of care to protect victims from harm when carrying out their statutory functions

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years. Local authorities have statutory powers to intervene to assist citizens in need. When, then, should they be liable for failing to intervene to protect citizens from harm from third parties? In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors) v Bedfordshire CC [1995] 2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales [2015] UKSC 2 and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4. These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:

A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
The authority can be said to have created the source of danger or
The third party who has harmed the claimant was under the defendant’s supervision or control.

The latest Supreme Court decision in Poole BC v GN [2019] UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law. It is a rather complex decision – although given in a single judgment – and an important one. The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development. (more…)

The future of personal injury law

Posted on March 21, 2016March 22, 2016 by legalresearch

By Prof Keith Stanton, Professor of Law (University of Bristol Law School).

The changes to personal injury law announced by the Chancellor of the Exchequer in the Autumn Spending Review have already raised considerable controversy. Claims for damages for whiplash injuries are to be abolished (along it seem with claims for all low value minor soft tissue injuries incurred in road accidents). In addition, the small claims limit for personal injury cases is to be increased from the current £1,000 to £5,000.

As a result of the latter change, a much greater number of personal injury cases will be determined in a procedure under which a winning claimant will be unable to recover any costs. The purpose of this comment is not to consider the immediate implications of these changes, but rather to ask what they tell us about how the personal injury system is likely to develop in the future. (more…)

Supreme Court rulings on vicarious liability: Cox and Mohamud

Posted on March 9, 2016March 22, 2016 by legalresearch

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)

On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort. Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment. Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.” Since 2001, it has been an area of law subject to expansion. The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:

The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice [2016] UKSC 10.
The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Both judgments are short and unanimous. Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. (more…)