Version 1.

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General Certificate of Education
June 2010

Law LAW02
The Concept of Liability
Unit 2

Mark Scheme
Mark schemes are prepared by the Principal Examiner and considered, together with the
relevant questions, by a panel of subject teachers. This mark scheme includes any
amendments made at the standardisation meeting attended by all examiners and is the scheme
which was used by them in this examination. The standardisation meeting ensures that the
mark scheme covers the candidates’ responses to questions and that every examiner
understands and applies it in the same correct way. As preparation for the standardisation
meeting each examiner analyses a number of candidates’ scripts: alternative answers not
already covered by the mark scheme are discussed at the meeting and legislated for. If, after
this meeting, examiners encounter unusual answers which have not been discussed at the
meeting they are required to refer these to the Principal Examiner.

It must be stressed that a mark scheme is a working document, in many cases further
developed and expanded on the basis of candidates’ reactions to a particular paper.
Assumptions about future mark schemes on the basis of one year’s document should be
avoided; whilst the guiding principles of assessment remain constant, details will change,
depending on the content of a particular examination paper.

Further copies of this Mark Scheme are available to download from the AQA Website: www.aqa.org.uk

Copyright © 2010 AQA and its licensors. All rights reserved.

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 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

LAW02

Assessment Objectives One and Two

General Marking Guidance

You should remember that your marking standards should reflect the levels of performance of
candidates, mainly 17 years old, who have completed some part of the advanced subsidiary
course, writing under examination conditions. The Potential Content given in each case is the
most likely correct response to the question set. However, this material is neither exhaustive
nor prescriptive and alternative, valid responses should be given credit within the framework of
the mark bands.

Positive Marking

You should be positive in your marking, giving credit for what is there rather than being too
conscious of what is not. Do not deduct marks for irrelevant or incorrect answers, as
candidates penalise themselves in terms of the time they have spent.

Mark Range

You should use the whole mark range available in the mark scheme. Where the candidate’s
response to a question is such that the mark scheme permits full marks to be awarded, full
marks must be given. A perfect answer is not required. Conversely, if the candidate’s answer
does not deserve credit, then no marks should be given.

Citation of Authority

Candidates will have been urged to use cases and statutes whenever appropriate. Even where
no specific reference is made to these in the mark scheme, please remember that their use
considerably enhances the quality of an answer.

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 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

Assessment Objective Three

QUALITY OF WRITTEN COMMUNICATION (QoWC)

2 marks The work is characterised by some or all of the following:

• clear expression of ideas
• a good range of specialist terms
• few errors in grammar, punctuation and spelling
• errors do not detract from the clarity of the material.
1 mark The work is characterised by:
• reasonable expression of ideas
• the use of some specialist terms
• errors of grammar, punctuation and spelling
• errors detract from the clarity of the material.
0 marks The work is characterised by:
• poor expression of ideas
• limited use of specialist terms
• errors and poor grammar, punctuation and spelling
• errors obscure the clarity of the material.

4
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

The level of understanding in AS Law – LAW 02

To help you find the level of understanding shown in a script, there will be some of the following
characteristics shown. It is important to remember that the assessment is aimed at the notional
17-year old, so the level of understanding required by these criteria will be that of the notional
17-year old.

Sound • The material will be generally accurate and contain relevant material
to the Potential Content.
• The material will be supported by generally relevant authority and/or
examples.
• It will generally deal with the Potential Content in a manner required
by the question.

As a consequence, the essential features of the Potential Content are

dealt with competently and coherently.

Clear • The material is broadly accurate and relevant to the Potential

Content.
• The material will be supported by some use of relevant authority
and/or examples.
• The material will broadly deal with the Potential Content in a manner
required by the question.

As a consequence, the underlying concepts of the Potential Content will

be present, though there may be some errors, omissions and/or
confusion which prevent the answer from being fully rounded or
developed.

Some • The material shows some accuracy and relevance to the Potential
Content.
• The material may occasionally be supported by some relevant
authority and/or examples.
• The material will deal with some of the Potential Content in a manner
required by the question.

As a consequence, few of the concepts of the Potential Content are

established as there will be errors, omissions and/or confusion which
undermine the essential features of the Potential Content.

Limited • The material is of limited accuracy and relevance to the Potential

Content.
• The material will be supported by minimal relevant authority and/or
examples.
• The material will deal superficially with the Potential Content in a
manner required by the question.

As a consequence, the concepts of the Potential Content will barely be

established, as there will be many errors, omissions and/or confusion
which almost completely undermine the essential elements of the
Potential Content.

5
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

Section A: Introduction to Criminal Liability

Total for this question: 45 marks

0 1 Explain the meaning of the term ‘causation’. (7 marks)

Potential Content

(A) Explanation of the meaning of causation. This can include:

Factual causation – “but for” test and explanation, cases/examples to illustrate,

eg White

Legal causation – significant and operative cause, novus actus interveniens:

cases/examples to illustrate, eg medical negligence, eg Smith, contribution of others,
eg Benge, pre-existing medical condition, eg Hayward, etc

Mark Bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

6
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 2 Explain the meaning of the term ‘mens rea’. (7 marks)

Potential Content

(A) Explanation of the meaning of mens rea in general terms (guilty mind).

Recognition that the courts have developed definitions of common states of mind found
in criminal liability. These include:

Direct intent (definition + illustration, eg Mohan),

Oblique intent (definition + illustration, eg Woollin) and,

Recklessness (definition and illustration, eg Cunningham)

NB Marginal credit may be given to explanation of transferred malice – Max 1

Mark Bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

7
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 3 Explain the meaning of ‘transferred malice’. (5 marks)

Potential Content

(A) Explanation of the meaning of the principle of transferred malice. This can include:

Meaning - ie mens rea directed toward one person is transferred to the victim. An
understanding that the rule operates from person to person or object to object, but not
object to person or vice versa

Cases and/or examples in support, eg Latimer and Pembliton

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

8
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 4 Discuss the criminal liability of Dan for pushing Carl. (7 marks)

Potential Content

(A) Recognition of the crime of battery (assault by beating)

S. 39 Criminal Justice Act 1988

Discussion and application of actus reus of battery. This should include a recognition of
the application of unlawful force and the lack of any significant injury.

Discussion and application of the mens rea of battery. This should include a recognition
that force can be applied intentionally or recklessly.

Cases/examples in support

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

9
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 5 Discuss the criminal liability of Dan for the injuries suffered by Enid. (7 marks)

Potential Content

(A) Discussion and application of gbh s20 (definition + application)

Recognition and application of the transferred malice rule.

Cases/examples in support of either version of gbh

NB Possible argument for abh s47, based on lack of appropriate mens rea for s20, can gain
full marks

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

10
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 6 Outline the procedure that would be followed if Dan was charged with a summary
offence. (5 marks)

Potential Content

(A) Outline and application of procedure. This could include:

First appearance at Magistrates Court;

Plea;
Legal representation/Duty Solicitor
Bail;
Pre trial review;
Trial to be at Magistrates Court.

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

11
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 7 Outline the range of sentences available to the court and the factors the court would
consider if Dan was convicted of an offence in respect of Enid’s injuries.
(7 marks + 2 marks for AO3)

Potential Content

(A) Outline of the range of sentences. These are:

Custodial;
Community;
Fine or Discharge.
Application to scenario, eg first time offender who, if given a community sentence might
be expected to undertake an anger management course.

Outline of aggravating and mitigating factors

Application to scenario – aggravating factors include, eg unprovoked attack, vulnerable
victim; mitigating factors include transferred malice, no previous convictions, remorse
and help of victim.

NB Credit aims under factors, where the two are linked. Balance of depth and breadth
between sentences and factors should be taken into account.
Only one aspect dealt with - max 5.

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear

0 The answer contains no relevant information

12
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

Section B: Introduction to Tort

Total for this question: 45 marks

0 8 Explain the meaning of the term ‘breach of duty’. (7 marks + 2 marks for AO3)

Potential Content

(A) Explanation of the meaning of the term. This could include:

The standard of reasonable man.

Case/example, eg Blyth v Birmingham Waterworks

Identification and explanation of the risk factors.

Case/example in support, eg Paris v Stepney BC, Bolton v Stone, etc

Max 5 for no reference to reasonable man

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

13
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

0 9 Damage involves the rules of causation and remoteness of damage. Outline the
meaning of these rules. (7 marks)

Potential Content

(A) Explanation of factual causation

Case/example, eg Barnett v Chelsea & Kensington Hospital

Explanation of the meaning of remoteness of damage. This can include:

Reasonable foreseeability test
Kind of damage
Thin skull rule
Case/example, eg The Wagon Mound, Doughty v Turner Manufacturing, Smith v Leech
Brain, etc

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

14
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 0 Assume that Richard owed a duty of care to Gordon and to Janet. Discuss whether
Richard was in breach of these duties. (7 marks)

Potential Content

(A) Discussion and application of the rules relating to breach of duty

Reasonable man test and risk factors

Relevance, for example, of Richard’s possible lack of expertise, degree of risk,

seriousness of harm and the position of someone acting in an emergency (public utility),
etc

Case/example in support, eg Nettleship v Weston, Paris v Stepney BC, Marshall v

Osmond, Bolton v Stone, etc

A conclusion based on the above discussion and authority

Mark Bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application
but neither is clear.

0 The answer contains no relevant information.

15
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 1 Assuming that Richard was in breach of his duty of care to Janet, discuss whether
Janet’s blindness was too remote. (7 marks)

Potential Content

(A) Application of remoteness tests. This can include:

Forseeability
Take your victim as you find her
Type of injury, but not exact form or extent.
Intervening act by doctor
Case/example in support, eg Barnett v Chelsea & Kensington Hospital, The Wagon
Mound, Smith v Leech Brain, etc

NB A brief reference to the factual causation rules as part of an explanation as to the

limitations on recoverable damage can be credited.

A conclusion based on the above discussion and authority

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or

application but neither is clear.

0 The answer contains no relevant information.

16
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 2 Assume that Janet and Gordon decide to claim against Richard in negligence. Outline
which track(s) these two cases would be allocated to and identify which court(s) would
hear these two negligence claims. (5 marks)

Potential Content

(A) Outline of tracks and financial limits

Application to Janet’s claim (multi track) and Gordon’s claim (fast track)

Identification of relevant courts (Janet – County or High), (Gordon – County)

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application
but neither is clear.

0 The answer contains no relevant information.

17
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 3 Outline the burden of proof in negligence cases and how the principle of res ipsa
loquitur may affect this. (5 marks)

Potential Content

(A) Burden of proof is on claimant to show the defendant has been negligent

Res Ipsa Loquitur involves an obvious case of negligence

Burden of proof shifts to the defendant
Case/example in support, eg Byrne v Boadle, Pearson v NW Gas Board

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

18
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 4 Assuming that Richard was found to have been negligent, explain how the court(s)
would calculate an award of damages to Janet and to Gordon (7 marks)

Potential Content

(A) Outline explanation of the calculation damages. This could include:

General and special damages
Heads of damage (damage to property, loss of earnings, loss of amenity, expenses
incurred)
Mitigation
Structure of awards.
Application to Janet (personal injury, loss of earnings/loss of amenity) and
Gordon (property damage).

Case/example in support, eg Jefford v Gee

(Account should be taken of depth and breadth, ie a strong application can be balanced
by a weaker framework explanation or vice versa)

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or

application but neither is clear.

0 The answer contains no relevant information.

19
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

Section C: Introduction to Contract

Total for this question: 45 marks

1 5 Explain the ways in which an offer can come to an end. (7 marks)

Potential Content

(A) Explanation of the ways an offer can come to an end. This can include some or all of the
following:

Counter offer + explanation

Rejection + explanation
Revocation + explanation
Lapse of time + explanation
Acceptance + explanation

Cases/examples in support, eg Hyde v Wrench, Payne v Cave, Ramsgate Victoria Hotel

v Montefiore, etc.

Note – at least three ways must be explained to achieve a sound response.

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

20
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 6 Explain the meaning of ‘intention to create legal relations’. (7 marks)

Potential Content

(A) Explanation of intention to create legal relations. This can include:

Commercial situations, and the presumption in favour of a contract

Social and domestic situations, and the presumption against a contract
The rebuttable nature of these presumptions
Identification of areas where this issue is sometimes raised, eg husband and wife, other
family and domestic arrangements, football pools entries, etc

Cases/examples in support, eg Balfour v Balfour, Merritt v Merritt, Simpkins v Pays,

Jones v Vernons Pools, etc

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

21
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 7 Explain the meaning of the term ‘breach of contract’. (7 marks + 2 marks for AO3)

Potential Content

(A) Explanation of the meaning of breach of contract in general terms

Actual breach + explanation to include, for example types of breach (condition and
warranty) and the implications in terms of remedy.

Anticipatory breach + explanation to include, for example, the choices available to the
injured party at the point when the breach is notified prior to the date performance is
due.

Cases/examples in support, eg Poussard v Spiers & Pond, Bettini v Gye, White & Carter
v McGregor, etc.

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation

0 The answer contains no relevant information.

22
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 8 Discuss whether there has been offer and acceptance in the dealings between Juan
and PD. (7 marks)

Potential Content

(A) Discussion and application on offer and acceptance. This could include:

Advertisement is an invitation to treat; request for information when Juan asks for a price
– not an offer; offer made by PD in the answer phone message which is not an
acceptance (no offer to accept); Juan does not receive offer (no communication until
received), or

The view could be taken that Juan made an offer then answer phone message is an un-
communicated, and so ineffective, acceptance.

Cases/examples in support, eg Partridge v Crittenden, Stevenson v McLean, Taylor v

Laird, Felthouse v Bindley, etc

A reasoned conclusion (either way) based on discussion and authority

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

23
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

1 9 Explain the meaning of the term ‘consideration’ and identify the consideration in the
contract between Juan and AB. (7 marks)

Potential Content

(A) Explanation of the meaning of consideration. This could include:

Definition of consideration in general terms

Types of consideration (executed, executory and past)
Possible reference to other rules of consideration

Reference to cases/examples, eg Chappell v Nestle, Re McArdle, etc

Brief explanation and identification of consideration in the contract – computer and £345
(possible reference to payment and delivery)

Mark bands

7-6 The candidate deals with (A) as follows:

one sound

5-4 The candidate deals with (A) as follows:

one clear

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

24
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

2 0 Assuming that Juan has decided to sue AB for breach of contract, identify which court
would hear Juan’s claim and track to which the case would be allocated. Outline the
opportunities there would be for settlement of the dispute without going to court.
(5 marks)

Potential Content

(A) Identification of relevant court (County Court) and track (small claims).
Possible reference to financial limits

Outline of opportunities for settlement without going to court. This can include any one
or more from:

Negotiation, mediation and possible trade arbitration

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2-1 The candidate demonstrates limited capacity for explanation and/or application but
neither is clear.

0 The answer contains no relevant information.

25
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

2 1 If Juan were successful in his claim against AB, outline how the court would calculate
an award of damages. (5 marks)

Potential Content

(A) Outline of basis of calculation of damages in contract. Issues such as:

Reasonable expectation under the contract

Mitigation of loss.

Brief explanation of calculation in this case - Richard having to pay £50 more for his
computer
Possible reference to incidental costs

NB Either credit for assumption that he has had a refund of £345 from AB or that his claim
is for a refund + £50

Mark bands

5 The candidate deals with (A) as follows:

one sound.

4 The candidate deals with (A) as follows:

one clear.

3 The candidate deals with (A) as follows:

one some.

2 -1 The candidate demonstrates limited capacity for explanation and/or

application but neither is clear.

0 The answer contains no relevant information.

26
 Law (LAW02) - AQA GCE Mark Scheme 2010 June series

ASSESSMENT GRID
(To show the allocation of marks to Assessment Objectives)
A Level Law (LAW02)

AO 1 AO 2 AO 3
Section A:
Question 0 1 4 3
Question 0 2 4 3
Question 0 3 3 2
Question 0 4 3 4
Question 0 5 3 4
Question 0 6 1 4
Question 0 7 4 3 2
Totals Section A 22 23 2
Section B:
Question 0 8 4 3 2
Question 0 9 4 3
Question 1 0 4 3
Question 1 1 3 4
Question 1 2 2 3
Question 1 3 2 3
Question 1 4 4 3
Totals Section B 23 22 2
Section C:
Question 1 5 4 3
Question 1 6 4 3
Question 1 7 4 3 2
Question 1 8 3 4
Question 1 9 3 4
Question 2 0 2 3
Question 2 1 3 2
Totals Section C 23 22 2

27