Examiners report 2012

Transcription

1 Examiners report 2012 LA3001 Law of tort Zone A 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 and provide nothing or 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 minutes left, what should you do? First, you should answer a fourth question. It will 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 those 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 distressingly common habits which waste time. (a) Do not deal with matters that are not included in the question. See the comments on questions 1 and 2: in both of them many candidates discussed possible claims against parties other than those asked for. (b) Do not copy out the question or even 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 (3) 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 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, and think carefully about the most satisfactory method of organising the material. In respect of both the essay questions (see details later) a surprising number of candidates wrote on the wrong topic (Question 6) or addressed it in a different way from that asked (Question 8). Commentary on the problem questions identifies a number of situations where the wrong issue was identified by candidates. Specific comments on questions Question 1 Angela was visiting her friend Betsy. She complained of a severe headache and Betsy gave her a box of painkillers that had been prescribed by her (Betsy s) doctor. These had been manufactured by Poppharma plc. On the outside of the box and on a leaflet inside, there was a note reading: Do not consume with alcohol. May ca severe naa and diarrhoea. Angela had drunk two small glasses of wine. She took two of the painkillers (the recommended dose for an adult). An hour later she became violently ill and was admitted to the Downbeat Hospital. She was examined by Conrad, a doctor, and told him about the pills she had taken. Conrad arranged for her to be admitted and prescribed a drug to treat her condition. Daphne, the nurse on duty, misread the doctor s notes and gave her only 10 per cent. of the dosage that Conrad prescribed. Angela became more seriously ill and required painful and debilitating abdominal surgery. There is a strong possibility that, if she had been given the correct dosage, she would have recovered after a few days. It has now been established that Angela suffered from an extremely rare allergy to one of the ingredients of the painkillers. No other case has been identified where a person taking one of these painkillers suffered a comparable reaction. It cannot be established whether the wine had contributed to the reaction. Advise Angela as to any claims against (i) Poppharma and (ii) the Downbeat Hospital. The instructions made clear that there were two separate claims to consider. The first is against Poppharma (in respect of the initial injury) and the second against the Downbeat Hospital (in respect of the worsening of the condition). A complete answer should also consider the extent to which each defendant (if liable) is responsible for the damage suffered. It is essential to discuss Part 1 of the Consumer Protection Act 1987, cases on duty of care of doctors and nurses such as Bolitho v City and Islington Area Health Authority, cases on new and intervening ca. There were serious errors committed by in some cases a very large number of candidates. (1) A great many considered only a claim in negligence at common law against Popharma. This is certainly a possibility since the 1987 Act has not abolished the common law action deriving from Donoghue v Stevenson. It has, however, given a remedy more favourable to consumers and it would certainly be 2

3 negligent to advise Angela to sue only in negligence and not under the 1987 Act. This point is made twice in the subject guide. (See and 6.2. At both points readers are advised to study Chapter 8 on the 1987 Act instead of the narrow rule in Donoghue v Stevenson.) (2) A number of those candidates who did refer to the 1987 Act seemed to think that it merely put the duty of care into statutory form. It did not. It was intended to give greater protection to consumers as well as to provide uniformity on this topic throughout the European Union. (3) It has been established since 1932 that manufacturers owed a duty of care to the ultimate consumer. Where there is an established duty of care, it is wholly unnecessary to set out the three stage test in Caparo v Dickman in order to establish the same point all over again. (4) In discussing the relative responsibilities of the two defendants 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 worsening of Angela s condition after she reached hospital, 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. (5) Several candidates also discussed the liability of Betsy. The question asked only for the liability of Popharma and the hospital. No marks are awarded for answering questions that are specifically excluded. consider the application of the Consumer Protection Act 1987 in relation to Poppharma, and the concepts of negligence and vicarious liability to the Downbeat Hospital. Poppharma is the manufacturer of the medicine, according to s 1(2) and s 2(2)(a) of the Act. Under the Act strict liability is imposed on manufacturers of defective products, which means that fault on the part of the manufacturers need not be proved. The manufacturer will be liable for a defect in the product (as defined in s 3(1)). Since Angela reacted very seriously to the drugs, it would appear to have had a defect. Popharma may however seek to rely on the state of the art defence (s 4(1)(e)) and candidates should consider the scope of this defence. It is clear that, if the drug was defective, the defect was a ca of the violent illness (i.e., if she had not taken the drug, she would not have become violently ill). There is then the question of the two glasses of wine. It is true that the 1987 Act does provide that instructions for, or warnings with respect to the product are to be taken into account in determining what persons generally are entitled to expect. However the warning on the painkillers gave no indication of why alcohol should not be consumed and certainly gave no indication of the possibility of the really serious consequences that befell Angela. It is therefore by no means certain that, beca of the warning, the product was not defective. In any case it is not established that the alcohol was causally relevant (i.e. Angela might still have suffered in the same way even if she had not drunk the wine). The second claim, that against the hospital, would be on the basis of vicarious liability for the negligence of one of their employees. The failure to give Angela the correct dosage would seem to point to a breach of duty on the part of someone. (It was interesting that almost all candidates blamed the nurse, and only a small number considered that the doctor might be to blame for writing illegibly.) Angela will have to establish that the error in the dosage cad the aggravation of the problem and the resulting surgery (i.e. she has to convert the strong possibility into proof on the balance of probability). As to the assessment of damages, there is no doubt that, if the hospital is liable, it will have to compensate only for the additional complications. If Popharma is liable, it will have to compensate for the original injury and hospitalisation and presumably also, if the hospital is not liable, for all the damage that ensued. If the hospital is liable, Popharma will seek to argue that there is a new and independent ca (nova 3

4 LA3001 Law of tort causa interveniens) and it (Popharma) is not liable (or not wholly liable) for the aggravation of the damage. exhibited some or all of the errors mentioned above. They were also often unbalanced, spending too much time on basic elements of negligence and not enough time on the most important issues. Question 2 Ina was registered as a foster carer with Wandsbeth Borough Council. Jack, aged 12, was placed in her care by the council. After a few weeks she told the social services department of the council that Jack s behaviour was becoming impossible to deal with. One of the council social workers, Kaylene, spoke to Ina and Jack. She reported to the council that she thought that Jack was settling well and anyway there was no suitable place in any of the council s care homes at the time. Three weeks later Jack lost his temper completely. He went into Ina s sitting room, seized papers and photographs and ripped them to shreds. Ina came into the room and struggled to prevent Jack destroying her family photographs. Jack punched her and knocked her down. He then rushed out of the ho, but fell down a flight of stairs and fractured his skull. Ina was so seriously injured that she has had to give up fostering and to go into a care home as a long term resident. Advise the Council as to any possible liability to Ina or Jack. The central theme is the possibility of an action in negligence (or possibly a claim under the Human Rights Act 1998) against the local council for the way in which it exercised its powers to take responsibility for vulnerable children. There have been several developments on this topic in recent years and a revised chapter on this topic was made available at the time that the Recent developments update was issued. Cases on the availability of a negligence exercise by a public authority of its statutory functions, such as D v East Berkshire and Connor v Surrey County Council. Again, as in Question 1, candidates answered questions that were not asked. They were asked to discuss the liability of the council, and a discussion of a claim in battery against Jack (even if he were financially worth suing) and of a claim by Jack against Ina as an occupier should not have figured in the answer. note that the council s main responsibility is to the child (Jack). The courts have now accepted (D v East Berkshire and other cases) that there is a duty of care to the child especially where, as here, the council had already assumed responsibility to him by taking him into their care. However, both the English courts and the European Court of Human Rights have accepted that it may in practice be difficult to establish that the council has broken its duty. Too little attention was given to the issue of breach. After all it is important that Jack is given a stable home and the council should not lightly move him again after only a few weeks unless this is really necessary. If a claim is possible, it is necessary to consider whether the council would be liable for all the consequences to Jack of his destructive behaviour. Domestic courts have not been willing to recognise a duty of care towards the 4

5 parents (although the ECtHR has held in some cases that there may be a violation of their Convention rights) and a foster parent may likewise be in a similar position. The reasoning in Connor v Surrey County Council (2010) (mentioned by very few candidates) may be helpful to Ina here. However the effects on the head teacher in that case were cad by third parties and not by a person for whom the council had responsibility and there is unlikely to have been a contractual relationship between Ina and the council as there was between Ms Connor and her employer. Similarly, although it was relevant to consider the reasoning in the Dorset Yacht case, the injured parties in that case were outsiders and not the very person who had undertaken the job of looking after the child. By the way it is Dorset Yacht and not Dorset Yatch as so many candidates wrote. It was disappointing that a very substantial proportion of candidates made no reference to the fact that the question involved the exercise of powers by a public authority and to the special difficulties to which that gives rise. Many answers were based largely on employers liability towards Ina, but, although it is not impossible, there was no suggestion that Ina was an employee but merely that she had been approved and registered as a person with whom children could be placed. Most answers had insufficient to say about the standard of care to be shown by a council in situations such as this. Question 3 In November 2011, Geoffrey decided to transfer substantial shareholdings to his nephew, Hugo, a law student. He instructed his solicitor, Jarndyce & Co, to make the necessary arrangements. Despite reminders, the solicitors failed to carry out his instructions. In December Geoffrey left England to spend Christmas in South Africa. Hugo s friend, Irene, took a vacation placement with Jarndyce & Co over the Christmas period. Hugo, who knew that Jarndyce acted for his uncle, asked her if she could manage to find out whether his uncle had left him anything in his will. Irene told him, It s even better than that. He s transferred lots of loot to you already. You re a rich man now, Hugo. Hugo, who had become bored with his studies, therefore withdrew from university and went to live with his same sex partner on a canal boat. When Geoffrey returned in January, he discovered what Hugo had done. He ordered his solicitors not to carry out his former instructions and has now transferred the shareholdings to a cousin. Advise Hugo. There are two different claims that Hugo could pursue against Jarndyce & Co. The first claim would arise out of their failure to carry out Geoffrey s instructions: the second would arise out of possible vicarious liability for Irene s remarks. Cases on economic loss and negligent misstatements, particularly White v Jones. Case law on vicarious liability. A common error was to fail to distinguish between the two different losses that Hugo had suffered. As to the first claim, the obvious parallel is the extended Hedley Byrne principle exemplified in White v Jones. Candidates should have considered whether the reasoning in that case was applicable only to wills or could be extended to an inter 5

6 LA3001 Law of tort vivos disposition such as in the problem. The policy reasons for holding that the solicitors in White v Jones owed a duty not just to their client but also to the beneficiaries particularly relate to the fact that the case concerned a will: (i) the testator s estate had a claim for breach of contract but had suffered no loss: (ii) the testator was now dead and could no longer make a new will: (iii) there should be a sanction against solicitors in such cases beca of the importance of enabling people to control the fate of their property after death. Dicta in the case itself and some subsequent decisions suggest that the principle should not be extended to cases involving a disposition between parties who are still alive. Candidates should therefore have explained the scope of White v Jones and considered whether there were any reasons for making such an extension. If this claim were to succeed, the damages would be the loss of the shareholdings that ought to have been transferred to Hugo. The second claim would be whether Jarndyce & Co is vicariously liable for the wrong information given to Hugo by Irene. This would be based on the original and not the extended Hedley Byrne principle. Candidates should however have identified the formidable difficulties in framing such a claim: (i) Was Irene s statement part of a social rather than a business conversation? (ii) Irene s information went beyond answering the question she was asked. (iii) Could Irene reasonably have supposed that Hugo would rely on her answer in the way that he did? Was it reasonable for Hugo to have done so? (iv) Could Irene possibly be acting in the course of employment (even if she was an employee) by divulging information about a client s (Geoffrey s) affairs to a non-client (Hugo) and should not Hugo have realised that she should not have done so? If this second claim were to succeed, the damages would be very different from those arising from success in the first claim. Irene s information could not possibly have cad the loss of the shareholdings but might have cad the loss of his university place until such time as he resumed it or could reasonably be expected to have done so. Poor answers commonly failed to explain and analyse the reasoning in White v Jones and to discuss how this might or might not be applicable on the present facts. Likewise there was often a very weak analysis of whether Irene was acting in the course of employment. 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 from the Court of Appeal of Ontario, whose judgment was upheld. Both these courts 6

7 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. Candidates 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. 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 7

8 LA3001 Law of tort the courts were still reluctant to recognise 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 Lisa acquired a site for a fairground. It is surrounded by barbed wire and there are notices round the perimeter: Danger. Site closed. No entry. Guile Ltd is main contractor for the development. Slapdash Ltd is a subcontractor and installed several features of the fairground. Maria, the site manager, an employee of Guile, visits the empty site to check the quality of the completed work. She pulls across a bolt on the perimeter gate but does not lock it. Nick and Olly, both 14, find some boxes and manage to climb up, lean over the top of the door and pull back the bolt. Nick climbs to the top of a newly installed chute. It begins to wobble beca one of the supports has not been properly stabilised. In panic, Nick jumps to the ground. Olly breaks his fall, and he and Nick are injured. The chute remains upright and Nick would have been safe if he had not jumped. Maria had inspected the chute and had entered it as satisfactory on her hand-held computer. Advise Nick and Olly. This case requires a knowledge of and an ability to apply the legislation governing the liability of occupiers. Occupiers Liability Act Surprisingly many candidates referred to the 1984 Act as establishing or providing for a duty of common humanity. That was the pre-1984 common law rule (Herrington v British Rail) and the word humanity does not appear in the statute. Secondly, many candidates, although saying they were relying on the 1984 Act, in fact quoted the 1957 Act. For instance there is no provision in the later statute about expecting children to be less careful than adults, although no doubt the courts would take account of the status of the trespasser in considering the likelihood of their presence and the steps that should be taken to protect them. conclude that Nick and Olly would appear certainly to be trespassers. Even if the fairground is an allurement, and even if (which is very dubious) there is life in the doctrine of allurement (a fiction designed to help claimants before the passing of the 1984 Act), there are surely adequate indications to 14-year-olds that they are not allowed entry, and they had to go to the trouble to climb up to get over the perimeter fence. The discussion should therefore have centred on the Occupiers Liability Act Lisa owns the premises but Guile Ltd would seem to have control of the entire site and to be responsible for safety, although Slapdash Ltd might be responsible for the safety of particular features. The main question is therefore to discuss whether the boys can establish the criteria specified in s 1(3) of the

9 Act. Candidates should consider whether the criteria for establishing a duty in s 1(3) of the 1984 Act are met. If they are, then there is a question as to whether Nick was contributorily negligent in jumping from the chute and whether Olly has a claim as a rescuer. A different line of reasoning is to consider whether Maria was negligent. Many candidates were critical of her failure to lock the gate, but she had bolted it and the children were able to gain access only with difficulty: no doubt she intended to lock it properly when she left. More plausibly, it is strange that Maria did not see the children coming in and starting to climb the chute. Another common criticism was her decision to certify the condition of the chute as satisfactory: on the other hand, even if that was a careless misjudgement, it is doubtful whether she was under a duty to label the chute in some way, given that the presence of trespassers was unlikely. A serious weakness in many answers was that candidates were unclear as to the precise requirements of s 1(3) of the 1984 Act and in particular as to the requirement of having reasonable grounds to believe in both (a) and (b) in the subsection. Question 6 Whether a defendant has breached the duty of care is a question of fact. But determining the appropriate standard of care is a question of law and a number of factors are relevant to this determination. Discuss. This called for a straightforward essay on breach of duty as explained in 3.3 of the subject guide. Section 1 of the Compensation Act Cases on breach of duty such as Nettleship v Weston, the Bolam case, Watt v Hertfordshire CC, Bolton v Stone, Mullin v Richards. The main error in the answers to this question was that many candidates wrote wholly or mainly on the wrong topic. The question was confined to breach of duty: both the key expressions were included in the question breached and standard of care. It was emphatically not about the circumstances in which a duty of care arises and could not be interpreted in that way. It was completely wrong to write about establishing the duty of care even as an introduction to the main theme. Even more inexplicable was the fact that a number of candidates wrote essays on causation and not on breach of duty. Although the existence of a duty of care is a matter of law, the issue of whether the duty has been broken is a matter of fact (Guide 3.3.4). A decision that a defendant was negligent beca he did X or did not do Y does not create a rule of law that it is always negligent to do X or not to do Y. Nevertheless the standard of care against which a defendant is judged (that of the reasonable person ) is set by the law. This standard of care is amplified in a number of cases, and the essay should have explored the extent to which these amplifications eat into the principle that breach is a question of fact. These amplifications are of two kinds. The first explains how the standard of care is refined for particular categories of defendants such as children and members of particular professions (such as medicine) or with particular skills (such as car driving). The second sets out factors (see Guide 3.3.3) that a 9

10 LA3001 Law of tort court must take into account in deciding whether a duty has been broken such as the degree of risk and the costs of eliminating the risk. Most of these factors are created by the common law, but it was disappointing that so few candidates referred to s 1 of the Compensation Act 2006 which imposes a statutory requirement on the courts to consider whether requiring a defendant to take steps might prevent a desirable activity from being undertaken or discourage persons from undertaking functions in connection with a desirable activity. even if they were on the right topic, simply summarised the law on breach of duty without considering the required tension between questions of fact and law. 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 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. 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 10

11 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. 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. 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. 11