Basic Common Law Concepts (LS-1000)

This article is a work in progress. As a result, it may be missing entire sections of information at this time.

The Basic Common Law Concepts course is offered by the Royal University of Gotzborg's King Charles II Law School in Altamore.

The course will provide the Student with a general understanding of the Common Law system, upon which the courts of the Royal Kingdom of Gotzborg operate. Specific items to be discussed include the history of the Common Law system, Tort Liability, and Contract Law. Special topics that may be discussed, time permitted, include business organisations, international considerations, and intellectual property.

This course strongly references the Canadian Legal System and related examples; however, the core concepts generally remain relevant throughout Common Law jurisdictions. Considerable reference is made to, and information taken from, Law for Professional Engineers: Canadian and International Perspectives, published by D.L. Marston (3rd Edition, 1996).

This course is intended for general interest and as a purely informational process for the members of the Gotzborg community. While the instructor has received training in the areas of law to be discussed and applies Contract Law in a variety of unique situations throughout projects in the construction industry on a day-to-day basis, the instructor is not a expert in this field and does not make any related warranties or guarantees. If the reader is seeking legal assistance, please contact a law professional rather than using these lectures as a basis for decision.

The course is a prerequisite for all other courses offered by the King Charles II Law School.

Course Information

Course Information	Details
Course Title	Basic Common Law Concepts
Course Designation	LS-1000
Suggested Audiences	Law School Candidates, General Interest
Length	7-part Lecture Series
Exam	TBD
Associated Certificate(s)	Law Degree
Instructor	Liam Sinclair
School	King Charles II Law School
Original Release	2010
Content Last Updated	2016

Lecture Series

Introductory Remarks

The Basic Common Law Concepts course serves as a basic introductory course to several aspects of the English Common Law system. Our main emphasis will be on Contract Law and Tort Law, though we will examine a variety of concepts relevant to the overall Common Law system. Several special topics are included in this course on an as-time-permits basis, though I am hopeful that we will be able to examine most if not all of these, as they are particularly informative. The concepts covered in this course will specifically reference the Canadian Legal System, though many of the concepts may be universally applied to other Common Law jurisdictions.

For those of you who are unfamiliar with me, my name is Liam Sinclair, and I have been a citizen of Gotzborg since 2004. I have received training in the topics covered in this course from macronational institutions and, through my macronational employment I have gained considerable practical knowledge on Contract Law, as well as other business-related aspects of Common Law. I do not profess to be an expert in these areas. My goal is merely to convey some useful information to fellow Gotzborg citizens as a means of professional development.

With that, let'€™s jump into the first topic of the course, which is a brief history of English Common Law. This lecture, being the first of the course, will be light reading!

History of Common Law

Origins of Common Law

The origins of the Common Law can be traced to England in the 11th Century A.D. and the English Court of Common Pleas. This Court dealt with legal matters between "commoners",€“ i.e. matters that did not interest the Crown. As the centuries passed, the term "common" came to refer more to the uniform application (and enforcement) of the King's Law. A law that was commonly enforced throughout the realm became well known and, as a result, it held more weight and commonly accepted, even if the law was not specifically written in Statute.

What is Common Law?

In Common Law jurisdictions, there are two basic types of law: Statute and Regulatory Law and the Common Law. The former is law that is promulgated by legislatures and executives (government ministers), while the latter refers to "judge-made" law. That is, the Common Law is developed from the decisions of judges and other legal commissions/tribunals and is meant to provide for a fair handling of similar questions of law based on similar facts by providing a guideline to judges for the dispensing of such questions.

Each decision made by a judge on a Common Law matter contributes to the formation of a body of precedent that binds future decisions on similar matters, unless it is determine by the judge that the facts of a particular matter cause it to be fundamentally distinct from all other matters forming the body of precedent. It is important to note that more recent decisions take higher precedence than older decisions, as relevancy to the current social needs is a core principle of Common Law.

There are three core principles of Common Law:

1. Governs areas outside of Statute Law -€“ in most Common Law jurisdictions, Contract Law, and Tort Law (as well as some aspects of property law) are not governed by Statute Law; as such, Common Law provides an important tool to govern these areas of law.
2. Adjudication - in rendering a decision under the Common Law, one must ascertain the facts, research and locate relevant case and statutory law and then extract from these the principles developed through previous decisions in order to determine how the current matter will be resolved.
3. Evolution to meet current social needs -€“ unlike statute law, which tends to be rigid and only amended when the legislature sees an absolute requirement, there is certain flexibility to Common Law. Common Law can be adjusted to meet the current expectations of society while still maintaining its integrity through gradual evolution. In other words, a judge must still generally abide by the body of precedent (i.e. the Statute's proscribed remedies or punishments), but can provide some flexibility in his decision to meet the social expectation.

These principles are important to keep in mind and will come into play as we move through this course and examine specific case law examples and notable past Common Law decisions.

Limitation Periods and Burden of Proof

Limitation Periods

One aspect in which Common Law is governed by Statute Law is through the use of limitation periods. Limitation periods, quite simply, are prescribed time frames in which an action (court filing) must be undertaken in response to a breach of the Law. The use of limitation periods extends through all types of law, from Contract Law to Criminal Law, though it is becoming increasingly common for jurisdictions to not provide limitation periods on filing an action in response to major criminal acts (such as any degree of murder).

An important consideration is how the limitation period is defined -€“ does it begin with the offence, or with the discovery of the offence? For example, if a party violates their contractual obligations to another party (the "€œinjured"€ party), would the limitation period for filing an action in response to the injury commence on the date on which the breaching party caused the injury, or on the date on which the injured party realized that they had been injured? This is something that is prescribed in Statute Law, though a limitation period, if applicable, will commonly commence from the date on which the injury was discovered.

As noted in the English Court of Appeal decision in Sparham Souter et al. v. Town & Country Developments (Essex) Ltd. Et al. [1976 C.A. 858]:

The cause of action accrues when the damage caused by the negligent act is suffered by the plaintiff and that cannot be before that damage is first detected, or could by the exercise of reasonable skill or diligence have been detected.

This decision is often considered to form the legal principle for commencement of limitation periods. That said, in England, this decision was subsequently overruled by the House of Lords in 1982 (Pirelli General Cable Works Ltd. v. Oscar Faber and Parthers), which decided that in tort, the limitation period commences with the date the injury occurred, rather than the date it discovered. While I am unsure if this remains the precedence in England, in Canada, the House of Lords decision was rejected on appeal to the Supreme Court of Canada when it was referenced in a similar case. In Canada, the Sparham Souter principle continues to remain in the body of precedent.

Generally, an action filed after the expiration of a prescribed limitation period will fail, being said to be "statute barred". This is not a definite response. Depending on the jurisdiction and its legal framework, the court may have the authority to extend the limitation period provided that there are reasonable grounds to do so.

Burden of Proof

A common term in Law is the "Burden of Proof", referring to which party to a matter is responsible for proving its case.

In Criminal Law, the burden is on the Crown (prosecution) to prove the criminal charge against a party beyond a reasonable doubt. That is, to a reasonable-thinking person, there can be no doubt that the party committed the offence.

This "reasonable-thinking person" is defined by Case Law from jurisdiction-to-jurisdiction (for example, Canada's Supreme Court has specified it's own test for reasonableness); however, it is generally defined as a person in society who exercises average care, skill and judgment in conduct and serves as a comparative standard for determining liability. Essentially, it is the everyday "Joe Blow" of society, not a highly-trained specialist such as an engineer or doctor or lawyer, for example.

In the Civil Law stream of Common Law jurisdictions, the plantiff (the party bringing the matter to Court) must similarly prove the allegation; however, the burden of proof is much lesser, known as being proven on the "balance of probabilities". In such matters, a judge must merely take the testimony and evidence of each party and determine which, from a reasonable perspective, puts forward the most credible lawful case. In other words, the plantiff's case need not be proven beyond a reasonable doubt through the evidence presented; it must merely be more credible than the counter-case presented by the defendant.

Tort Liability

In the last section, we discussed the concept of the “reasonable-thinking person” which is a cornerstone of the Common Law system. This concept forms a cornerstone of Common Law jurisprudence, as a presiding judge must ultimately make a decision that not only conforms to Statute Law and Adjudicative Law (Case Law), but one that is “reasonable” in all the circumstances.

We will discuss Tort Liability in this lecture, which requires a judge to render a decision using the “reasonable-thinking person” approach to matters in which injury has been, or alleged to have been, caused to a particular party either intentionally or through the negligence of another.

What is a Tort?

A “tort” is defined by the Mirriam-Webster Dictionary as an action that wrongly causes injury to someone but that is not a crime and that is dealt with in a civil court.

It is usually a wrongful action that occurs independently of a contract (for example, one party causes injury to another in a motor vehicle collision, in which the parties have no contractual relationship); but, as we shall discuss below, it is nonetheless possible for tort liability and breach of contract liability to arise concurrently in certain matters. The “tort” (injury) can take many different forms, from loss of life or good health, to loss of reputation from libel and slander, to financial loss, to give a few common examples.

Tort Liability arises from a claim that a defendant was negligent in his or her duty of care and thereby caused injury to the plaintiff. The duty of care is one that is examined under a test of reasonableness, which involves the court examining the matter from the perspective of the “reasonable-thinking person” discussed in the previous lecture.

The plaintiff must substantiate three essential components of a tort action in order to be successful before the court; if any one component is not substantiated to the satisfaction of the court, the action fails. Those three essential components are:

1. The defendant owed the plaintiff a duty of care;
2. The defendant breached that duty by his or her conduct; and,
3. The defendant’s conduct caused the injury to the plaintiff;

Duty of Care

The Duty of Care refers generally to the standard of care to which a defendant in a tort matter should reasonably be held. It is an obligation for the defendant to conform to a certain standard of conduct in order to protect another person against an unreasonable risk of harm.

That obligation requires a person to exercise a certain level of attention, alertness and prudence in accordance with that of a reasonable-thinking person in the same circumstances. Yet, it is important to note that in the case of Tort Law especially, the reasonable-thinking person may not be "Joe Blow" as we previously discussed. Rather, the defendant would be judged against the ordinary competence expected of his or her peers.

For example, in the case of a tort arising from medical malpractice, a medical doctor would be expected to demonstrate the care and skill of any other doctor who has comparable training and in accordance with any established professional standards. On the other hand, if that medical doctor was driving a vehicle and caused a motor vehicle collision, he would have only been expected to demonstrate the care and skill in accordance with the driver training he had received.

In essence, the defendant's training in a certain skill forms an integral part of the Court's assessment of whether the duty of care was not met within the circumstances at trial.