Examiners report 2012

Transcription

1 Examiners report 2012 Examiners report 2012 LA3001 Law of tort Zone B Introduction This section identifies three general faults that often have a seriously adverse effect on the grade awarded for a paper: some of these are illustrated further in the commentary on individual questions. 1. It is important that there should be complete answers to four questions. Too many candidates answer only three questions or provide only a few notes for a fourth. This has a serious effect on the mark. If only three questions are answered, then to get a bare pass mark overall (40), the average for the three must be in the lower second range, and to get a bare lower second mark overall (50) the average for the three must be in the middle of the upper second range. If however you do misjudge the time and find yourself with only three questions answered and 15 or 20 minutes left, what should you do? First, you should answer a fourth question. It will almost certainly be easier to get marks for a short answer to a fourth question than for an additional page or so on one of the others. Secondly, make sure that you spend the twenty minutes wisely. Do not just write what would have been the first two or three paragraphs of a complete answer, but identify the main issues to be discussed and tackle what are clearly the main problem areas. If,for example, you decide to tackle a problem question that begins with a man driving a car at high speed along a city street, and then continues with issues about psychiatric injury and concurrent cas, do not spend the time discussing whether the driver owed a duty of care and had broken it. 2. Why then do candidates run out of time? Here are some habits which waste time. (a) Do not deal with matters that are not included in the question. Only advise the clients you are asked to advise, and only advise them about the claims you are told to advise them about. (b) Do not copy out the question or parts of the question word for word. (c) Avoid repeating yourself unnecessarily. If you begin the answer to a negligence problem thus, In a negligence action the claimant has to establish a number of matters. The first is whether the defendant owed a duty of care to the claimant do not start the second paragraph, Turning then to the first of these, namely whether the defendant owed a duty of care to the claimant (d) Do not set out a detailed discussion of a topic where that is not needed. There is a common example of that, identified as error (2) in the comments on Question 1. (e) Unless you are convinced that what you have written is entirely wrong do not cross out a substantial answer and then start all over again. This cannot be the right thing to do if you are substituting a slightly better answer to the same question (and is unlikely to be wise if you decide to tackle a different question instead of what you have written). Even if it is a bit better than the first version, this cannot compensate for the lost time. 1

2 LA3001 Law of tort 3. Think carefully what the question is asking before you start writing. In respect of essay questions see comments on Question 8. The commentary on the problem questions identifies a number of situations where the wrong issue was identified by candidates. Specific comments on questions Question 1 Frumps Ltd (a fashion ho) contracted with Gormless Ltd, a security firm, to provide security guards for its factory. One of the security guards, Hiram, had been working at Frumps factory for six months when, in February, he was told by the factory manager that designs for next season s fashions were in the premises and he must ensure at all costs that no unauthorised persons had access to them. A few days later Hiram spotted Jake, who had got into the factory and had broken into the safe containing the designs. When Jake saw Hiram, he fled carrying some papers. Hiram picked up a heavy weight and flung it at Jake. It hit him in the face, breaking his jaw. Jake managed to get out of the factory and rushed straight across the road. He was hit by a car driven by Kelly. She was driving at ten miles per hour above the speed limit and one of her front headlights was not working. Jake was knocked down and sustained serious head injuries. Jake has now had wires inserted in his jaw and will continue to have difficulty eating for the rest of his life. He also experiences frequent headaches beca of the head injuries. Advise Jake. Jake requires advice in respect of two events, one causing injury to his jaw and the other causing head injuries. The former calls for the more extensive discussion. Law cases, reports and other references the examiners would expect you to Cases on vicarious liability, particular involving deliberate or criminal acts by the employee and case on borrowed servants such as Mersey Docks and Harbours Board v Coggins and Griffiths (note it is the Mersey Docks, not the Mercy Docks as many candidates called it), Hawley v Luminar Leisure and the Viasystems case. Cases on intervening ca. Common errors There were some errors made a by a number of candidates in answering this question. (1) Some candidates considered Hiram s liability only on the basis of a negligence claim, apparently on the basis that he did not intend to hit Jake but carelessly did so. (2) Many spent far too much time discussing whether Kelly owed a duty of care. It is well established that a driver owes a duty of care to other road rs and it is wholly unnecessary to go through the requirements of Caparo v Dickman where there is a clear duty situation. (3) In discussing the relative responsibilities of Frumps and Kelly many candidates relied on Baker v Willoughby and Jobling v Associated Dairies. These are interesting cases but they arise on rather unusual facts. They had no relevance to this problem, where the issue was liability for the additional damage cad to Jake in the road accident, on which the two cases have nothing to say. This is explained in the subject guide (see the final paragraph of 4.2.1) and in the commentary on the 2011 examinations. 2

3 Examiners report 2012 first consider a claim in battery There is no doubt that Hiram has committed the tort of battery, having thrown a heavy object at Jake, even though he may not have intended the precise consequences. He may wish to argue that he did so either to prevent a trespass to the factory or to protect commercially valuable property, but would the force d be reasonable in all the circumstances to achieve these objectives? Jake will however wish to bring the claim against Hiram s employer. Most candidates dealt rather well with the issues as to (a) whether Frumps or Gormless (or possibly both) were the employers and (b) whether he was in the course of employment at the time. As to the first perhaps the most relevant parallel was the decision in Hawley v Luminar Leisure. There are some relevant factors not mentioned in the problem such as whether Hiram wore a distinctive uniform and how his wages and his national insurance were paid. He did not appear to be carrying out a personal grudge and indeed Frumps in its instructions seems to have encouraged him to go at least as far as the law permits (or maybe even further) to protect its interests. The second event requires less extensive discussion. Kelly plainly owed Jake a duty of care and, although breaches of the criminal law do not necessarily give rise to liability in tort, would in this scenario seem to have broken the duty. There is a possible difficulty about causation. Would Kelly have been able to avoid hitting Jake even if she had been driving with proper care? Kelly will argue that Jake was guilty of contributory negligence. A good answer would also give thought to the question of damages. Only the employer (let us assume Frumps) could be liable for the permanent damage to the jaw. But what about the head injuries? There are some interesting arguments to make. Was Hiram s conduct even a ca of the head injuries? There is after all the possibility that Jake would have rushed from the factory in the same way even if Hiram had merely shouted at him or indeed if Jake had fled as soon as he glimpsed a security guard approaching (in which case Hiram would have acted reasonably in defence of property). If Hiram s actions are a ca of the head injuries (in the sense that Jake would probably not have been injured if Hiram had not thrown the weight at him), can Frumps argue that either Jake s own actions or Kelly s negligence is a new and intervening ca? Poor answers to this question devoted too much time to Kelly s possible negligence and neglected more difficult aspects of the problem. Question 2 Ricky, aged 9, is a pupil at Slumville Academy, a state school. After the sudden death of his mother, teachers noticed that his behaviour had changed and he was subject to sudden mood swings and would shout at teachers and other pupils. He was referred by his head teacher to the education department of Slumsville City Council and was assessed by Prakash, an educational psychologist employed by the council. Prakash reported that he would benefit from specialist support, but he was not in the most vulnerable (category 1) class. Prakash rated him as category 2. Beca of financial constraints the council has reduced its specialist support services and at present only pupils rated as category 1 are referred to a unit where specialist support is provided. 3

4 LA3001 Law of tort Three weeks later Ricky became very angry in class. He rushed to the front and hit his teacher, Miss Stewart, knocking her to the ground and pulling her hair. Another pupil, Tom, ran to assist Miss Stewart and tried to pull Ricky away. A third pupil, Vera, ran from the classroom to fetch help. In the scuffle, Ricky, Tom and Miss Stewart were injured. Vera tripped running along the corridor and broke her arm. Advise the injured parties. The answer should certainly have identified the central problem as being the liability of a public authority for the way in which it exercises its responsibilities for vulnerable people. This was dealt with in a revised chapter of the subject guide made available at the same time as the Recent developments in February. Although a failure to make this point was a serious fault in the answer, the law in this area is notoriously uncertain and the responses should reflect this uncertainty. Cases such as Phelps v Hillingdon, D v East Berkshire and others on the liability of public authorities in negligence in the exercise of their statutory and other responsibilities. Common errors The most common error was to ignore the fact that this question concerned the distinctive liability of public authorities. The English courts (partly as the result of developments in the European Court of Human Rights (ECtHR)) have been willing to recognise some duty towards children in these situations. An appropriate parallel is the decision in Phelps v Hillingdon LBC although it could be distinguished in that the duty in that case was directed to the long-term educational needs of the pupil rather than to protecting the teachers and other pupils. However even though both the ECtHR and the domestic courts are willing to recognise a duty, they both recognise that it may in practice be hard to prove breach of duty (i.e. to establish that Prakash s judgment was negligent at the time or that the council be liable for the way in which it chose to exercise the power (or the open-ended duty) within its financial constraints). Miss Stewart must be an employee of the council and the Court of Appeal has clarified this in the case of Connor v Surrey County Council. The council may be liable for a failure to provide an appropriate protection for its employees if to provide it would be consistent with its statutory powers. If the failure to provide sufficient protection for Miss Stewart is a breach of duty, Tom and Vera would be considered as rescuers, but Vera would have the difficulty that her injury did not actually arise in the course of encountering the danger (Crossley v Rawlinson). Question 3 Bernard owns a country estate, Hideous Hall, where he has an aquarium containing a number of rare fish. He announced in the press and on the internet that the estate would be open to the public over a holiday weekend and that half the proceeds would go to his favourite charity, the League for Decency. Two days before the holiday weekend, a workman employed by Roadworks Ltd carelessly severed an electric cable outside Hideous Hall. Power was cut off for some time. Bernard announced on his website that Hideous Hall would not be open on the Saturday but would open on Sunday and Monday; he also announced that a large number of fish had died and the aquarium would not be open to visitors. 4

5 Examiners report 2012 Visitor numbers were much lower than expected and a number of people posted comments on his website that they had especially wanted to see the fish and would therefore not be coming. Advise Bernard and the League for Decency. This problem calls for a discussion of liability for negligently inflicted economic loss and of the distinction between pure and consequential economic loss. Cases on economic loss such as Spartan Steel v Martin and its successors Common errors A common error was to fail to consider the death of the fish as a form of physical as opposed to economic damage. The question states that the workman was employed by Roadworks Ltd and that he carried out his task carelessly. He must certainly have been in the course of his employment. Therefore there is no need to do anything more than summarise in a sentence the fact that Roadworks Ltd must be vicariously liable for the breach of duty committed by their employee. So far as Bernard s claim is concerned, it is important to distinguish between two different kinds of loss. There is some physical damage (i.e. the death of the fish). Is this foreseeable physical damage for which Roadworks would be liable? If so, are some of the economic losses consequential upon this physical damage and therefore recoverable under the principle in the Spartan Steel case? The fish have not been reared to be sold commercially, but they are commercially exploited and there is evidence that at least some of his commercial losses are cad by the death of the fish. Most of Bernard s loss is however pure economic loss (assuming that he is not the owner of the cable outside his property) resulting simply from the fact that he cannot admit visitors on the Saturday and this would seem not to be recoverable. The League for Decency does not appear to have any form of proprietary interest in the fish. Even if they any contractual claim against Bernard for any share of the profits from the opening of the estate, this would not seem to entitle them to any claim against Roadworks. Question 4 A few years ago Canadian courts considered a claim by a Mr Mustapha who saw a dead fly in an unopened and sealed bottle of water delivered to his home and manufactured by a company which had supplied him with bottled water for many years. He was obsessive about cleanliness and, as a result of the experience and the worry that he and his family had been exposed to dead flies, he developed an extreme fear of using water for any purposes amounting to a recognised psychiatric illness. In rejecting the claim, a judge in the Ontario Court of Appeal asked, Is he (Mustapha) neither a primary nor a secondary victim, then? Or is he both? For that and other reasons he ruled that the distinction was unworkable and undesirable and that the English approach to psychiatric damage should not be adopted in Ontario. How do you think an English court would deal with such a claim for psychiatric injury? In the light of your answer, comment on the English law on the recovery of damages for such injuries. The case referred to ultimately reached the Supreme Court of Canada and is reported as Mustapha v Culligan of Canada Ltd 2008 SCC 27. The quotation comes 5

6 LA3001 Law of tort from the Court of Appeal of Ontario, whose judgment was upheld. Both these courts decided the case on the simple basis that, although there was a breach of duty that had cad a recognised psychiatric illness, the illness was not reasonably foreseeable, and the defendant had no reason to suppose that the claimant was particularly susceptible to such a reaction. Students were of course not expected to have known about the case. The question was partly a problem (how an English court might deal with these facts) but also called for a more general essay dealing with issues arising out of the problem. Cases on psychiatric injury, particularly Page v Smith, White v Chief Constable of South Yorkshire Police, Johnston v NEI International Combusion, Pleural plaques litigation. Mustapha does not fit easily into the established criteria for a primary or a secondary victim. It is true that he was made ill by the impact on his senses of the fly in the water but he cannot have thought himself in immediate physical danger. Could the category of primary victim be extended to include such a person? The Canadian courts had two difficulties with the English law as they saw it. One was a dislike of the distinction between primary and secondary victims, and the other was the decision in Page v Smith to the effect that, in the case of a primary victim, it was not necessary to show that the psychiatric injury was reasonably foreseeable. Their fear was that, if English law were to be applied and Mustapha to be regarded as a primary victim, then he could succeed without having to show that the psychiatric damage was reasonably foreseeable. A good answer to the problem might have pointed out that the Canadian decision was reached a few years ago and in more recent cases (such as the pleural plaques litigation) the English courts have not been keen to award compensation for psychiatric damage arising through fear of what might hypothetically happen in the future. It should also be pointed out that the issue is whether the psychiatric injury was recoverable at all rather than a question of eggshell skulls. Candidates had a fairly free hand in discussing the law on psychiatric injury arising from these facts. Some good answers considered both the attractiveness or otherwise of the primary/secondary distinction and also whether claimants should succeed (a) only where psychiatric injury was foreseeable and (b) whenever psychiatric injury is foreseeable. A danger identifiable with the Canadian approach is that the control mechanisms in cases like McLoughlin v O Brien will be lost sight of if damages can be claimed whenever psychiatric injury is foreseeable. There are two separate questions. Should damages be recoverable only if the psychiatric injury is foreseeable? Should damages always be recoverable for foreseeable psychiatric injury? The best answers considered and commented on this distinction. Poor answers to this question merely summarised the law on psychiatric injury without sufficient attention to the particular issues raised by the quotation. Student extract Having analysed Lord Lloyd s speech in Page v Smith, and some academic commentary on it, the answer continued, However liberal a shift in the law this may be, it would seem to bring no comfort to Mustapha as it can hardly be said that physical damage could be foreseeable by a fly in a bottle. Moreover the case of Rothwell v Insulating Co shows the English courts reluctance in recognising psychiatric illness without any personal injury. The facts of Rothwell are more compelling than those in the instant case as they were actually having physiological bodily changes, though symptomless, and the courts were still 6

7 Examiners report 2012 reluctant to recognize a claim for psychiatric injury independent of evidence of physical injury. Comment on extract The Rothwell case is another name for the pleural plaques litigation. This is a very attractive and thoughtful contribution and followed from a detailed knowledge of what Lord Lloyd had said and of critical comments of academic writers. It also drew an analogy with the pleural plaques litigation and in particular made the point that the pleural plaques litigation had minimised the risk that English courts would be too ready to award damages for unforeseeable psychiatric injury. Question 5 Frank owns and operates a funfair. It is in need of substantial renovation and is at present closed. There is a notice at the entrance reading: Warning. The site is at present closed and parts of it are in a dangerous condition. Gremlins Ltd wishes to tender for the electrical work at the site. With the permission of Frank, Harry, who is employed by Gremlins Ltd as a senior estimator, visits the site. He takes with him Irene, who has recently started work at the firm as an apprentice electrician. While Harry is discussing costs with Frank, Irene takes a look round the funfair and decides to start up the dodgem cars. The dodgems have not been d or inspected for some time, and some of the wiring has deteriorated. When Irene starts the dodgems, there is a vivid flash: Irene is electrocuted and suffers serious injuries. Advise Irene as to any possible claims against (i) Frank and (ii) Gremlins Ltd. The question clearly indicates that there are two separate claims to be considered. The first is a claim against Frank as the occupier of the site: the second is a claim against Gremlins Ltd as her employer. Occupiers Liability Act 1957 and associated case law. Cases on employers liability such as Wilsons and Clyde Coal v English and McDermid v Nash Dredging. Common errors A number of answers wholly or substantially ignored the second of the two claims. This was an omission that seriously affected the mark awarded. A number of candidates relied on a mysterious Employers Liability Act for which they gave no date. There are certainly statutes and regulations that impose particular duties on employers but the employers non-delegable duty to provide a safe system of work and so forth is a common law and not a statutory development. have concluded that Irene was at least initially a lawful visitor. Harry arrived for the meeting accompanied by Irene: Frank was clearly in the premises at the time beca he is discussing estimates with Harry and must therefore have accepted Irene s presence. It is just possible that she could be regarded as a trespasser when she starts up the dodgem cars. Either way Frank has two strong defences. One is the warning notice at the entrance. This is relatively weak beca it is does not particularly identify the danger. More important Frank can assume that Irene is knowledgeable about dangers likely to be encountered (and Frank has no reason to suppose she is only an apprentice). An excellent answer might have pointed out that perhaps it is not possible to apply s 2(3)(b) of the Occupiers Liability Act 1957 literally beca Irene is not actually exercising her calling at the time, but would 7

8 LA3001 Law of tort also argue that the statute is construed broadly and the principle would surely be applicable to these facts. Irene s second possible claim would be for a breach of her employer s non-delegable duty of care if she can show that there is not a safe place of work (but it should be considered whether the funfair counts as a place of work since Irene may not actually working there at the time) or that she has not received adequate supervision from Harry or training from the company. Poor answers to this question tended to spend too much time discussing straightforward questions as to whether the fairground was premises and whether Frank was the occupier. Question 6 The law tampers with the but for test of causation at its peril. (Sienkiewicz v Greif (UK) Ltd (2011) per Lord Brown). Why, and in what circumstances, has the law departed from the but for test? Has this been a good or a bad thing? This question required a discussion of problems of causation with particular reference to (i) the particular problem considered in the Sienkiewicz case and (ii) the tension between justice and strict logic in dealing with causation problems. Certainly the cases of McGhee v NCB, Fairchild v Glenhaven Funeral Services, Barker v Corus and the Compensation Act 2006 s 3: some reference to other aspects of causation such as Hotson v East Berkshire, Wilsher v Essex Area Health Authority, Gregg v Scott. (i) deal with the meaning of the but for test, (ii) give an account of at least some of the exceptions to it (particularly but not exclusively the Fairchild exception) and (iii) explain the reasons of logic or policy or apparent justice which prompted these exceptions. There should be an indication of how a well-intended exception to the general rule may lead to unexpected complications that may then prompt legislative intervention (see the Compensation Act 2006). There was a summary of the Sienkiewicz case in the 2012 recent developments material. Although candidates may not have studied Lord Brown s judgment in detail, they should have a sense that he may have thought the combination of judicial and legislative activity has led to odd conclusions. Poor answers to this question tended simply to summarise the law on causation without making any attempt to explain what Lord Brown meant or the reasons for departing from strict logic or ro evaluathe the desirability of such departures. Question 7 Grinders Ltd has a plastics factory at the edge of a village. It has recently seen a considerable increase in demand for its products and it has had to work late into the evening to meet demand. It has also installed state of the art equipment. In 2010 Basil inherited a pub near to the factory. He was not interested in running it, but he allowed his nephew Craig (who had trained as a chef) to open a small restaurant in the pub. He does not charge Craig any rent. The restaurant initially attracted an increasing number of customers, but they find the noise from Grinders factory very irritating and business at the 8

9 Examiners report 2012 restaurant has dwindled. Basil says that he cannot be bothered taking any action about it. Grinders new equipment often emits clouds of microscopic particles. These are invisible to the naked eye and are no danger to human health. Adjoining the factory however there is a private airstrip owned by Daphne and d by the local flying club. The aviation authorities have told Daphne that aircraft must not take off or land while the wind is blowing from the direction of the factory. No such problems have been encountered elsewhere with the kind of equipment that Grinders has installed. The flying club has now found an alternative airstrip and has terminated its arrangement with Daphne. Advise Craig and Daphne. This is a fairly straightforward question requiring a discussion principally of nuisance but with reference also to the rule in Rylands v Fletcher. Common errors The main error was a failure to consider whether Craig had sufficient interest to bring a claim in nuisance. Most candidates gave reasonable accounts of the balance to be struck between the interests of Craig as a restaurant owner and Grinders Ltd as factory operators, and of the various factors that determine whether the interference would amount to a nuisance. Craig s principal difficulty however is that he seems to have no interest in property sufficient to sustain such a claim: his interest in the restaurant business is not founded on any property interest. There have of course been suggestions that the English rules on private nuisance ruling out members of the family of the property owner or tenant from claiming are incompatible with Convention rights, but, even if these are correct, it is not clear in this problem what Convention rights of Craig are affected. There is of course no doubt that Daphne has a sufficient interest. It would have been helpful to discuss separately two different issues. The first is whether Daphne can get a remedy in damages for the loss cad to her airstrip: this is comparable in some ways to the damage suffered in the Cambridge Water case. So far as that is concerned, the question of whether such damage was foreseeable is highly relevant, and the situation could have been considered in relation to private nuisance and the rule in Rylands v Fletcher. The second is whether for the future the of the equipment amounts to a nuisance that could be restrained by injunction. Question 8 If you were given the opportunity to make three legislative amendments to the English law of libel, what three would you choose, and why? This question did not prescribe any particular areas of libel on which candidates were required to write. Instead they had a free hand to write about the particular things that interested them. The choice of cases and statutory provisions would depend on the particular reforms that candidates selected for discussion. 9

10 LA3001 Law of tort A number of candidates entered enthusiastically into the spirit of the question. There are various ways in which this can be done. The most obvious is to identify three possible reforms and then to explain in respect of each of them (i) what the present law is; (ii) what is unsatisfactory about it; (iii) how you would reform it; (iv) how your reformed law would be better than the present. You could also say briefly why these reforms were so important that they should be tackled in preference to other possibilities. Here is an example of what differentiated excellent answers from mediocre or poor ones. A large number of candidates selected the abolition of jury trials as one of their proposed reforms. A good answer had to explain why juries were not (or were no longer) appropriate specifically in libel actions. A common comment was that it resulted in lengthier and more costly trials and that this could have a chilling effect on free speech. Even better, some excellent answers also related this to modern developments in the law of defamation, particularly the Reynolds defence and its consequences, and argued that these threw up questions that were unsuitable for a jury to decide. Poor answers to this question Unfortunately a large number of candidates simply wrote out a summary of the present law: however accurate this was, it was in no way an answer to the question asked and could not receive a pass mark. Some candidates improved on this, but only very little, by stating very briefly at the end what matters out of the preceding narrative they would reform. Other candidates adopted a rather better (but not entirely satisfactory) approach and wrote about the reforms currently being considered by the United Kingdom Parliament and identified which of these particular reforms they preferred. Finally poor answers tended simply to suggest reforms without explaining adequately or at all why the present law was not acceptable. 10