LEVEL 6 - UNIT 13 - Law of Tort SUGGESTED ANSWERS - JANUARY 2015

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 13 - Law of Tort SUGGESTED ANSWERS - JANUARY 2015 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2015 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1 SECTION A The modern tort of trespass originates from the ancient writ of trespass which was used in relation to unlawful interference to the person, goods or land. The ancient writ had two distinctive characteristics: the interference had to be the direct result of the defendant s act and it was actionable per se (i.e. without proof of damage). The modern law of trespass retains these characteristics. To them be added the requirement that defendant s action must be willed, that is that the defendant intended the action complained of (though not necessarily its consequences). An exception to this is the tort in Wilkinson v Downton [1897]. This requires that the claimant show that the defendant intentionally inflicted harm. It is, however, submitted that Wilkinson v Downton is, whilst in some ways analogous to trespass, not a true trespass. It is a tort sui generis. It will therefore not be considered further here. The true trespasses are intended to protect legitimate interests in personal integrity, in personal property, and in real property. Trespass to the person may take the form of assault, battery and false imprisonment. Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. Battery is the intentional and direct application of force to another person. False imprisonment is the infliction of bodily restraint, which is not impliedly or expressly authorised by law. Trespass to goods is a wrongful physical interference with a chattel in the possession of another. Trespass to land is direct physical interference with the possession of land. Page 1 of 19

2 Historically, where the harm suffered was indirect the action lay in trespass on the case. It is from the writ of trespass on the case that the modern tort of negligence is said to originate. It is clear that there is no requirement that negligence is limited to harm that is inflicted directly: see (e.g.) Donoghue v Stevenson [1932]. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Per Alderson B, Blyth v Birmingham Waterworks Co (1856). This lacks the requirement of intention and imposes liability for failing to attain the standard of behaviour of the reasonable person. Historically, trespass could also be committed carelessly. The position was changed when, in Fowler v Lanning [1959], Diplock J held that a Statement of Claim that failed to indicate either intention or negligence revealed no cause of action. If the claim was in trespass intention must be pleaded. If it was in negligence the burden of proof was on the plaintiff to demonstrate negligence. This was approved in Letang v Cooper [1965]. Per Lord Denning MR actions in personal injury should be divided according to the defendant s conduct: trespass, where the defendant s act was intentional, and negligence where it was unintentional. This approach was later approved by the Court of Appeal in Wilson v Pringle [1986]. Thus carelessness is the standard of liability in negligence. Negligence differs from trespass in other respects. In negligence it is necessary to establish that the defendant owed the claimant a duty of care not act in such a way as to cause the claimant harm. It is necessary to show breach of that duty. This is not the case in trespass. In negligence it is necessary to establish that the act complained of caused the claimant harm; negligence is not actionable per se. The rules of remoteness of damage also differ. In trespass the test in re Polemis [1921] applies and the claimant may be compensated for all losses flowing directly from the tortious act: see Allan v New Mount Sinai Hospital (1980) (Canada). The differing nature of the torts of trespass and negligence means that defences also differ. Thus necessity, self-defence and defence of property are all available in relation to trespass, as are licence, lawful authority, etc. In negligence the appropriate defences are more limited: they are the general defences of contributory negligence, volenti non fit injuria, and ex turpi causa. Damages are available in respect of both trespass and negligence. Tortious damages are designed to place the claimant in the position s/he would have been had the tort not been committed. Where it is not possible to show harm in trespass (because the tort is actionable per se) an action will still lie but nominal damages only will be awarded. In both torts nominal damages will also be awarded where the harm suffered is trivial. Where there is significant harm substantial damages will be awarded in relation to both tort, provided the damage suffered is not too remote in law. A number of remedies exist that are specific to the trespass in question. For example, in relation to trespass to land: self-help and re-entry, ejectment, mesne profits, distress damage feasant, injunction. These may take the form of direct action by the victim of the trespass (e.g. self-help), a monetary award (e.g. mesne profits) or an order instructing the defendant as to future conduct (injunction). Page 2 of 19

3 Question 2 The law of tort is often characterised as having four main objectives. They are: (a) the protection of legitimate interests, (b) the provision of compensation when those interests are infringed, (c) the establishing of normative standards of behaviour, and (d) providing those who have suffered harm with some form of retribution. The establishing of normative standards is closely associated with the protection of legitimate interests. To infringe such interests is to fall below generally accepted standards of behaviour. The normative effect of an action in tort is complex. The individual who meets the normative standards of behaviour set by the law escapes tortious liability. Those who do not are designated tortfeasors. The person who acts in this way is subject to the sanction of paying damages and the symbolic and reputational stigma associated with a finding of liability. This does not normally carry the moral condemnation generally associated with criminal liability but it does encourage people to observe basic minimum standards and to take fewer risks, conducting their activities more carefully, mindful of their possible effect on other people and their property. The normative effect is closely associated with the payment of damages, which in tort are intended to place the victim in the position s/he would have had the tort not been committed. The aim, except in a small minority of cases, is compensatory, not punitive. The normative effect is mitigated where the tortfeasor is insured. The only likely direct financial consequence for the tortfeasor is an increase in the tortfeasor s insurance premium. Indirect effects may, however, be experienced where professional or business reputation is an issue. Tort s deterrent effect may then be considerable. The payment of damages amounts to the redistribution of the loss suffered as a result of a tort from the claimant to the defendant, in so far as a monetary award can achieve this. Whilst theoretically correct this analysis is rather simplistic. In most cases the defendant is insured. In fact, tort as a system of compensation could not operate unless supported by an insurance system. Damages and costs are largely paid by insurance companies. This means that the loss is redistributed to the insurer, which in turn means that the loss is redistributed to all policyholders via the price of the insurance premium. Another redistributive mechanism is where tortfeasors engaged in business incur damages in tort they may pass on their costs to the buyers of goods and services. The loss is then distributed to society at large. This does not, however, obviate the symbolic stigma associated with a finding of liability. Those who are most likely to be exposed to liability in many instances of tort, such as driving incidents and professional malpractice are insured. This is often a statutory requirement. Arguably, it is only in cases where insurance does not bear the costs of a successful claim that the normative function is fully felt. Where the defendant is uninsured there is a considerable risk that the claimant may go Page 3 of 19

4 undercompensated or uncompensated. Tort s role as a compensation system therefore seems to lessen its effectiveness as a means of deterring wrongdoing. The effectiveness of tort in discharging its functions, both normative and compensatory, is further limited by the restricted availability of access to justice to those who have been a victim of a tort. The high costs of making a claim can mean that many will never get the compensation they deserve. Viewed simply as a compensation system, tort has, for many years, been criticised for being inefficient and ineffective. It is extremely expensive to run. An unacceptably high proportion of the sums paid (e.g.) to personal injury victims is spent on administering the system. Unpredictability of outcome coupled with procedural pressures on claimants to settle actions for less than they would receive if they went to trial also often mean that amounts recovered are inadequate. The system is also criticised for its slowness. The claimant may have to wait years before receiving any compensation. The more serious the damage, and arguably the more distressed the victim, the longer he generally has to wait. This said, attempts to find alternatives have not been entirely successful. An example is to be found in New Zealand, where compensation for accidents was removed from the tort system. A comprehensive no-fault accident compensation scheme was set up in 1972 to replace tort damages in cases of personal injury. Under that scheme victims did not have to prove fault. They were paid on a weekly basis. They could claim up to 80% of pre-accident earnings. This could be supplemented by an independent living allowance which covered non-pecuniary loss. Sums paid were very modest when compared with damages in tort, particularly in relation to losses such as pain and suffering. The system is, nevertheless quick, certain and universal (at least for those suffering from the types of injuries and diseases which it covers). The New Zealand system has been criticised for being expensive and limited in scope. It therefore suffers from some of the failings of the tort system. The scheme influenced the findings of the Pearson Commission (cmnd ), most of which remains unimplemented for economic and political reasons. Whilst such schemes are unlikely to be implemented on a large scale, a modest attempt has been made at providing redress, without recourse to the tort system, in the form of the NHS Redress Act Modern political attitudes and economic problems do, however, mean that big state governmental schemes of the kind introduced in New Zealand are unlikely to replace the law of tort (coupled with private insurance) as a compensation system, despite its operational flaws. Question 3 (a) The defence of contributory negligence may become available in circumstances in which the harm suffered by the claimant was caused partly by the fault of the defendant and partly by the fault of the claimant. At common law contributory negligence is a complete defence. However, the Law Reform (Contributory Negligence) Act 1945 provides that an action should not be Page 4 of 19

5 defeated by reason of the claimant s contributory negligence. Section 1(1) empowers the courts to apportion damages as they think just and equitable. In establishing contributory negligence it is not necessary to demonstrate that the claimant owed the defendant a duty of care. It is necessary to show that the claimant was careless of his own safety. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might be hurt himself; and in his reckonings he must take in to account the possibility of others being careless, Jones v Livox Quarries [1952]. The contributory negligence may have contributed to the cause of the accident: see (e.g.) Davies v Swan Motor Co [1949]. It may merely lead to an increase in the harm suffered. As is clear from Lord Denning s comment in Jones v Livox Quarries it may include a failure to take precautions. In Froom v Butcher [1976] the guideline for apportioning damages where the claimant has been contributarily negligent by reason of a failure to wear a seat belt suggests that they be reduced by 25% if harm would have been avoided altogether and 15% if wearing a seat belt would have made them less severe. The court is reluctant to find contributory negligence in certain classes of claimant and in certain situations. There is a reluctance to find rescuers contributarily negligent: see (e.g.) Baker v Hopkins [1959]; Tolly v Car [2010]. This may be explained in terms of public policy: it is in the interest of society generally that the instinct to go to the aid of those in trouble should not be suppressed. The courts have shown some reluctance to find contributory negligence in children. When considering the defence it will take into account the age of the child. The standard of care against which the child is to be judged is that of the reasonable child of that age. In Gough v Thorne [1966] a 13 year old girl was held not contributarily negligent when she crossed the road when encouraged to do so by a lorry driver. It was thought that a girl of her age could not reasonably be expected to have paused and checked for herself before crossing. In Yachuk v Oliver Blaise [1949] (a Canadian case) a nine year old boy was burned whilst playing with petrol which he had purchased. The court held him not contributarily negligent. A child of his age could not be taken to have understood the hazards associated with handling petrol. Even where contributory negligence is found in a child the court has, on occasion, been sympathetic when apportioning damages: see Russell v Smith [2003]. When dealing with accidents at work the court should take into account the nature of the work and the environment in which it is performed. In Caswell v Powell Duffryn Collieries [1940] Lord Wright emphasised the need to draw a line between mere carelessness and negligence on the part of the worker. The court should adapt the standard of negligence to the facts and give due regard to the actual conditions under which men work to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety. Where a claimant is placed in a dilemma the court is likely to find against an argument for contributory negligence provided the choice made was reasonable (even though wrong): (e.g.) Jones v Boyce (1816). Where a person acts Page 5 of 19

6 instinctively and in the heat of the moment that is unlikely to be held contributarily negligent: Brandon v Osborne Garrett [1924]. Where, however, the claimant s reaction to being placed in a dilemma is unreasonably perilous in the circumstances that will amount to contributory negligence: Sayers v Harlow UDC [1958]. Where the claimant s lifestyle contributes to the harm suffered it may amount to contributory negligence (Badger v MoD [2005]) provided that conduct was not too remote in time, place and circumstance from the negligence complained of (St George v Home Office [2008]). (b) In order for this defence to arise necessary for a tort to have been committed: Woolridge v Sumner [1963]. The defendant must then establish that the claimant consented to the legal risk. Where the defence is to an intentional tort the consent must relate to the act done. Where negligence is in issue the consent must be to the risk in question. It must amount to an assumption of the risk by the claimant. This displaces any duty owed in negligence by the defendant to the claimant. The consent must be given with full knowledge of the risk. It must be real in the sense that it must be voluntary and given without financial, moral or other pressure. Mere knowledge without real consent is insufficient to relieve the defendant of liability. There are therefore few employment situations in which the defence is likely to succeed if the employee is injured in course of employment even if continuing to work in the presence of an already known danger: see (e.g.) Smith v Charles Baker & Sons (1891); Bowater v Rowley Regis Corporation (1944). A refusal to work in such situations is to run the risk of dismissal or at least fear the possibility. It is to be subject to financial pressure. Only where the claimant has real autonomy in the workplace and still decides to assume the risk in question is the defence likely to succeed. A rare example of this is to be found in ICI v Shatwell [1965]. Rescuers are usually similarly regarded. When they are found to assume the risk inherent in the act of rescue the consent given is not regarded as real. It is given as a result of moral or social pressure: see (e.g.) Haynes v Harwood [1935]. Where, however, there is no danger to others, mere attempts to assist are insufficient to support the defence: Cutler v United Dairies [1933]. In relation to passengers accepting lifts from obviously drunken drivers, the court is no longer prepared to infer an assumption of risk in such situations: Owens v Brimmell [1977]. Section 149 Road Traffic Act1988 now invalidates the defence in situations falling under the ambit of the Act. An example of a successful plea of volenti in an analogous situation is to be found in Morris v Murray [1991] in which a passenger in a light aircraft was seriously injured and the pilot was killed when the plane crashed. Both passenger and pilot had spent the day drinking together. An autopsy revealed that the pilot had consumed the equivalent of 17 whiskeys. The claimant was held to be volens. The risk was obvious and known to the claimant. Page 6 of 19

7 Question 4 Psychiatric harm was originally dealt with by the law in terms of nervous shock. Nervous shock has been defined as: the sudden appreciation by sight or sound of some horrifying event which violently agitates the mind, Alcock v Chief Constable of South Yorkshire [1991], per Lord Ackner. To be recoverable under this head the kind of harm suffered must be distinguished from ordinary grief and suffering, it must be more than temporary, and recognised by medical science: see Hinz v Berry [1970], per Lord Denning MR. Where the victim has suffered physical harm and this has resulted in psychological damage it is regarded as consequential loss. Psychological harm in the absence of physical harm has long been subject to considerations of public policy. It was decided in the 19th century that, as a matter of public policy, psychological damage alone did not provide grounds for compensation: Victorian Railways v Coultas (1888). In Dulieu v White [1901], however, it was held that an action for psychiatric harm was sustainable in negligence provided the harm resulted from the claimant being put in reasonable fear for her own physical safety. This kind of victim is now referred to as a primary victim. The approach taken in Dulieu v White was approved when the issue of nervous shock first came before the House of Lords in Bourhill v Young [1943]. A majority of the House of Lords held in Page v Smith [1995] that a duty of care may be established in primary victim cases by demonstrating the reasonable foreseeability of physical damage to the plaintiff. In such cases psychological damage was contained within the definition of physical. Bourhill v Young was however concerned not with primary victims but with psychological harm resulting from the witnessing of physical harm to others. Those suffering such trauma are now known as secondary victims. In Bourhill the plaintiff was descending from a tram when she heard an accident that was caused by a motorcyclist s negligent riding. The plaintiff later saw blood on the road. She suffered nervous shock. Their Lordships took a narrow view of the action and introduced factors that limited the number of potential claimants and had a considerable influence on the development of the action. Per Lord Thankerton the duty of the motorcyclist was to ride the vehicle with reasonable care so as to avoid harming those he could reasonably foresee would be harmed by his failure to exercise reasonable care. In order for a duty of care to arise the plaintiff needed to be within the contemplated zone of danger. The plaintiff in this case was not. Following this, development of the action was on piecemeal basis. A duty was recognised where other factors were present (or it was possible to identify other ways of limiting potential claimants) where (e.g.) a duty was already recognised: see Chadwick v British Transport Commission [1967]; Dooley v Cammell Laird & Co Ltd [1951]. Psychological damage suffered as a result of witnessing harm to others with one s own senses was subsequently recognised (certainly where there was a close family relationship): see (e.g.) Hinz v Berry [1970]. In McLoughlin v O Brian [1983] the House of Lords extended this to include situations in which the victim had come upon the immediate aftermath of such Page 7 of 19

8 an event. In that case Mrs McLoughlin did not witness the actual traffic accident that caused the death of one of her children and injury to other family members. She was, however, physically proximate to the scene of the accident (two miles away); she was told of the accident by a person who witnessed it and she experienced the aftermath when she visited the hospital and saw its impact upon her husband and children an hour or so after the event. The House of Lords held that the nervous shock suffered by Mrs McLoughlin was a reasonably foreseeable consequence of the defendant s negligence. Per Lord Scarman: Space, time, distance, the nature of the injuries sustained and the relationship of the plaintiff to the immediate victim are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is being applied. When the issue came before the Lords once more in Alcock v Chief Constable of South Yorkshire [1991] a very different approach was taken. In Alcock, actions were brought by sixteen plaintiffs, who had experienced, by way of radio or television broadcasts, the death or suffering of football spectators at the Hillsborough Stadium disaster. Fifteen of the plaintiffs were relatives of victims. The sixteenth was a fiancé of a victim. There Lordships held that two tests were to be applied. The first was that the psychiatric harm suffered by the claimant must be reasonably foreseeable: this was satisfied by the claimant demonstrating a close relationship of love and affection (that was not restricted to family ties only). The second test was that of proximity in time and space. Save, possibly, in some very limited circumstances this was not where the claimant was informed of the event by a third person. The claimants in Alcock consequently failed. In White v Chief Constable of South Yorkshire [1999] a claim was brought by a number of police officers who suffered psychiatric harm as a result of being on duty during the Hillsborough Stadium disaster. The House of Lords held that the status of police officer on duty afforded them no special protection. Using the criteria in Alcock, they were required to show sufficient proximity to those injured or killed. This they were unable to do. The House of Lords went on to address the issue of whether the police officers were rescuers. It held (Lords Goff and Griffiths dissenting) that in order to claim in that capacity the officers were required to show that their own safety was in actual or apprehended threat. The police officers claim failed. The control mechanisms in Alcock, and subsequent cases, on the issues raised there represent considerable barriers to secondary victims attempting to bring a claim. These barriers render decisions highly fact sensitive, which in turn leads to uncertainty in judicial decision making. Those control mechanisms have been subject to considerable criticism by the senior judiciary. In White Lord Goff expressed his concern that control mechanisms were being introduced in order not to offend the public by awarding damages to police officers where relatives had been denied compensation. Lord Steyn said that the law on the matter was a patchwork quilt of distinctions which are difficult to justify. In Alcock Lord Hoffman described the control mechanisms as more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within acceptable bounds. He went on to criticise the present law as not being founded on principle and representing a wrong turning in the law. Page 8 of 19

9 In Taylor v Novo [2013] the Claimant sought to argue that there had been a softening of judicial attitudes (see Walters v North Glamorgan NHS Trust [2002]) and there had been a relaxation of the criteria set out in the Hillsborough litigation. This argument was rejected by the Court of Appeal. Lord Dyson MR s judgment gave weight to the need for parliamentary reform of the law. Question 1 SECTION B Janine, Mary and Henry are all the victims of personal injury in the workplace. Employers owe particular personal duties to their employees. They may also be vicariously liable for the acts of their employees. It is therefore important to consider whether any employee-employer relationships exist between the parties. One of the most influential and widely used tests for determining this is the multiple test set out by Mckenna J in Ready Mixed Concrete (South East) v Ministry of Pensions (1968): 1. the employee agrees that in return for a wage or other remuneration s/he will provide work and skill for the employer 2. the employee agrees, either expressly or impliedly, to be subject to the control of the employer 3. the other terms and conditions of the contract should not be inconsistent with there being a contract of employment. Janine v Sucrose Ltd (SL) Applying the multiple test, Janine appears to be an employee of SL. She provides work and skill in return (presumably) for a wage. She appears to be under the control of SL (she works in the manufacture of SL s products, she followed orders to work on E27 Sugar Moulder.). Nothing in the facts suggests any terms and conditions that are inconsistent with a contract of employment. If this analysis is correct then SL owes a personal non-delegable duty of care to Janine. That duty is to take reasonable care for her when in the course of employment: Wilsons & Clyde Coal Co Ltd v English (1938) per Lord Wright. His Lordship specified the nature and extent of the duty. It is to employ reasonably competent staff, provide reasonably safe tools and equipment, and take reasonable care to ensure that work processes and methods are reasonably safe. This last duty includes a duty to provide training and supervision in appropriate circumstances. SL appears to have breached this duty: it failed to provide training in operating the E27 despite having received manufacturer s documentation emphasising the need for this. Further, SL appears to have failed to provide Janine with adequate safety equipment in the form of heat resistant gloves. Her wearing of ordinary rubber gloves (which made her injuries worse) appear to be the result of general instructions by SL. SL has two arguable defences: volenti non fit injuria and contributory negligence. SL could argue that Janine was aware of the risk and agreed to it. This is unlikely to succeed. She was new to the machine and there is nothing to suggest that she Page 9 of 19

10 was aware of the risk. Given her employee status the court may well question the reality of her consent: see Smith v Baker [1891]. SL could argue that Janine contributed to her own injury by allowing her hand to come into contact with the hot nozzle of the E27 and her damages should be reduced under the Law Reform (Contributory Negligence) Act It is unclear whether such an argument would succeed. The risk was necessarily reasonably foreseeable to Janine. The court is likely to be unsympathetic to SL s argument in the context of repetitive industrial work: see dicta Caswell v Powell Duffryn Collieries [1940]. Janine consequently has a strong arguable case against SL. Mary v SL; Mary v Great Gum (GG); Mary v Andy Mary s injury was caused by the negligent act of Andy. There is nothing in the facts to reveal any significant obstacle to establishing duty, breach and harm against Andy. She has a strong arguable case in law. There is, however, a significant risk that Andy would be unable to satisfy a claim in damages. It would therefore be advisable to bring a claim against his employer, which would be vicariously liable for his torts committed in the course of employment. Using Mckenna J s multiple test, Andy appears to be an employee of GG: he provided work in exchange for a wage; he was subject to the control of GG including obeying the instruction to work in SL s factory. GG is likely to attempt to transfer its liability for Andy s actions to SL. In order to do this GG must demonstrate that it divested itself of control of Andy whilst he worked at SL s factory. In Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] the House of Lords held that the burden of proof for shifting responsibility to the temporary employer or hirer rested upon the general employer. A number of factors were considered relevant to the question. The most important of these was, Who could give orders as to how the work was done? It was insufficient to show that the task to be performed was under the control of the temporary employer. In Viasystems v Thermal Transfer [2005] the Court of Appeal said that focus for establishing vicarious liability in such circumstances should be on who exercised control over the worker at the relevant time. It should be upon the negligent act and whose responsibility it was to prevent it. The facts indicate that the party entitled to tell Andy what to do and how to do it at the relevant time was SL. It consequently had a responsibility to prevent the harm suffered. SL is therefore the most likely party to bear vicarious liability for Andy s act. Henry v Douglas; Henry v CL To bring a claim in negligence for the personal injury it is necessary show that Douglas owed Henry a duty of care, that Douglas breached that duty, and that Henry suffered harm as a result. Page 10 of 19

11 It was reasonably foreseeable that a person in Henry s place was likely to be affected by Douglas s act. Loading boxes nine high onto a lorry was likely to render them unstable and likely to fall from the back of the lorry when its doors were unopened. This created a risk that is both foreseeable and of high magnitude. Henry suffered personal injury as a result. He appears to have a good arguable case against Douglas. If Douglas is an employee, for the practical reasons mentioned above in relation to Andy, it would be advisable to pursue CL on the basis of vicarious liability. To do so it is necessary to show that Douglas was an employee. Using the Mckenna J s multiple test, there are indications that Douglas is an employee of SL: he exchanged his labour and skill in return (it must be assumed) for a wage; he appears to be subject to the control of CL to the extent that he is under instruction on how to do the work (not to stack boxes more than five high). Once Douglas s employee status is established it becomes necessary to demonstrate that the tort was committed whilst in the course of employment. Douglas carried out an authorised act (delivering the goods of SL) but carried it out in a wrongful manner (stacking boxes nine high). Where an employee disobeys an express prohibition in these circumstances the employer is very likely to found vicariously liable: see Limpus v London General Omnibus [1862]; Rose v Plenty [1976]. Question 2 (a) In order to recover damages in negligence, Madison must establish that Kayla owed her a duty of care, that the duty was breached, and that consequential harm, which was not too remote in law, was suffered. In Caparo v Dickman [1990] the House of Lords established a three-part test for establishing duty: foreseeability, proximity, and it is fair just and reasonable to impose such a duty. What is required to satisfy this test varies with circumstances of the case and the nature of the harm suffered. Where the Defendant s act has directly caused physical harm to the Claimant s person a duty may be established by simply showing foreseeability: see Caparo v Dickman [1989] (CA), per Bingham LJ; Evans v Vowles [2003] (CA); Wattleworth v Goodwood Racing [2004] (CA) etc. It was reasonably foreseeable that Kayla s act would affect Madison. Madison was the person Kayla should have had in contemplation when she was directing her mind to the tongue piercing: Donoghue v Stevenson [1932]. There was also close physical proximity the parties. There is an argument that Kayla assumed responsibility for Madison s safety. Kayla consequently owed Madison a duty of care. Per Alderson B, Blyth v Birmingham Waterworks Co (1856), breach of duty is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. Kayla did not hold herself out as possessing any particular skill. Her conduct is therefore to be judged against the standard of the reasonable person. A reasonable person does not take risks of a high magnitude. When assessing magnitude of risk the court will consider the potential seriousness and the Page 11 of 19

12 likelihood of harm: see (e.g.) Bolton v Stone [1951]; Hilder v Associated Portland Cement [1961] etc. Piercing (without proper training and medication) an organ such as the tongue may involve a risk of high magnitude. Using (without guidance) a powerful antiseptic, intended for horses, on a wounded human tongue constitutes a risk of high magnitude. Kayla is therefore likely to be held in breach of her duty of care to Madison. It is necessary to show that the breach caused harm in both fact and law. The principle test for causation in fact is the but for test. This requires the court to pose the question: If the breach were removed would the harm still occur? If the answer is yes it is not possible to show causation: see Barnett v Chelsea & Kensington Hospital Management Committee [1968]. Where there is factual complexity the but for test may be inappropriate. It may be possible to use the material increase of risk test (i.e. the breach caused a material increase in the risk of harm): McGhee v NCB [1975]. There are two potential causes of the bleeding, pain and swelling suffered: the piercing and the application of Causto. The better argument is probably that these amount to a single event. Alternatively, the but for and material increase in risk tests should be argued in the alternative. In order to demonstrate causation in law it is necessary to show that the general kind of harm is reasonably foreseeable: The Wagon Mound (No1) [1961] Hughes v Lord Advocate [1963]. The burning, swelling and bleeding are reasonably foreseeable kinds of harm resulting from the breach. Liability is likely to be established in respect of them. Kayla is also potentially liable for the paralysis suffered by Madison. Kayla might argue volenti non fit injuria. In which case she must show that Madison both knew of the risk and consented to it. Kayla may also argue that Dr Langdon s treatment of Madison amounted to a novus actus interveniens. This is considered below. (b) Advice on an action against Dr Landon requires, first, consideration of causation in fact. There are three possible answers to the question. They are that the logical and proximate cause of the harm suffered by Madison when in Dr Landon s care was: (i) the injuries were caused by Kayla s actions; (ii) by the use of Dermomorph; and (iii) by the use of Sanguistoff. (i) The injuries caused by Kayla was the proximate cause If the paralysis and distress to Madison were caused, in fact, by Kayla s piercing of the tongue and application of Causto then an action against Dr Landon is very unlikely to succeed. The consequences of medical treatment are generally regarded as being the result of the initial act and even poor medical treatment is considered to be reasonably foreseeable. Only if the treatment is inappropriate or inexcusably bad is it likely to break the chain of causation: see (e.g.) Webb v Barclays Bank [2001]; Mahony v Krushich Demolition [1985] (Aus). Page 12 of 19

13 Kayla s liability will be limited to the immediate harm to the tongue only if she can show that Dr Landon s actions amounted to a nova causa interveniens. This requires her to show that the medical treatment was the cause of these injuries and it would be unfair to hold her liable: see Dalling v Heale (2011). To do this she must show that Dr Landon was blameworthy. (ii)& (iii) The injuries were caused by the use Dermomorph and Sanguistoff If these are the cause in fact of Madison s paralysis then a claim should be brought against Dr Landon alone (if there is a nova causa) or he should be joined in the action against Kayla (if there is not). The court may then apportion blame between them. The Claim against Dr Landon. To succeed in an action in negligence against Dr Landon, Madison must satisfy the essential requirements of the action already set out above. The duty owed by a medical practitioner to a patient is long-established in law. Madison needs to show that, as a matter of fact, both Dr Landon and she belonged to the category of doctor and patient. It was reasonably foreseeable that Madison would be closely and directly affected by his acts; he should have had her in contemplation when considering treating her. There is little doubt that Dr Langdon owed Madison a duty of care. On the issue of breach, the standard against which Dr Landon should be judged is that of the reasonable person who is possessed of the skills that Dr Landon holds himself out as having. The standard of care expected of a doctor is that of a reasonably competent doctor: Bolam v Friern Hospital Management Committee (1957). When a doctor complies with an accepted practice that is approved by a responsible body of medical opinion, under the Bolam test, he will not be in breach of duty. Not all errors of judgment constitute a breach of duty. That is the case even in situations in which that error has led to harm to the Claimant. Thus in Whitehouse v Jordan [1981] the House of Lords found the defendant doctor s robust and extended attempts to deliver a child who suffered brain damage as a result did not amount to negligence. Whether an error of judgment amounts to negligence depends on the nature of the error. Only if it was one that would not have been made by a reasonably competent doctor might it amount to negligence. Where a body of professional opinion cannot withstand logical analysis it may be said to lack the requirement of reasonableness. Then it will not provide an adequate basis against which to judge the doctor s actions: Bolitho v City and Hackney Health Authority (1997). The facts of the problem indicate that opinion was divided on the use of Dermomorph on injuries to the mouth. Provided a responsible body of medical opinion supported its use, and that support was logical and reasonable, there was no breach. That appears to be the case. Its use was, then, an error of judgment at most. Dr Langdon is unlikely to be found liable. The question suggests that Sanguistoff was normally used in emergency situations only. Prima facie, choking as a result of profuse bleeding from the tongue was an emergency situation. If that is correct then there is no breach. Expert medical opinion should be sought on the matter. Page 13 of 19

14 In addressing Dr Landon s liability, if the application of but for test gives rise to difficulties it may be necessary to argue the material increase in risk test,. These are discussed in detail in part (a) above. The better argument may be that they comprise a single negligent course of treatment. In order to demonstrate causation in law it is necessary to show that the general kind of harm was reasonably foreseeable: The Wagon Mound (No1) [1961] Hughes v Lord Advocate [1963]. It may be argued that the paralysis suffered by Madison is too remote. In such circumstances the principle of take your victim as you find him applies. Provided it is possible to foresee some harm then the defendant will be liable even if the precise form and extent of harm was not: Smith v Leech Brain [1961]. In the light of the above it is unlikely that Dr Langdon is liable in negligence. It is even less likely that his conduct amounts to a novus actus interveniens. Consequently Kayla is likely to be liable for all the harm suffered by Madison, including the paralysis to her face. Question 3 The Occupier s Liability Act 1957 ( OLA 57 ) provides that an occupier of premises owes a duty of care to lawful visitors. The Occupier s Liability Act 1984 ( OLA 84 ) provides that an occupier may, in more limited circumstances, owe a duty of care to non-visitors. Neither Act defines occupier. The common law test is set out in Wheat v Lacon (1966): Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury then he is an occupier.. per Lord Denning MR. Zelda v Joseph Joseph owns and runs the farm on which the barn (the relevant premises) is situated. He has sufficient control to constitute him occupier. Zelda, a blacksmith, was a lawful visitor. She was invited onto the premises to shoe Joseph s horse. Joseph s duty was to take reasonable care to ensure that Zelda was reasonably safe from dangers arising from the state of the premises when doing this (s2(2) OLA 57). Zelda was electrocuted when she attempted to connect her electric forge to the barn s electricity supply. The premises were unsafe because water had soaked into the wall of the barn, causing Zelda to come into contact with the electrical charge. Section 2(3)(b) of the 1957 Act provides that an occupier may expect a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it, in so far as he is free to do so. This section serves to lower the standard of care owed. It may consequently may be argued that there was no breach. It is unclear whether electrocution is a special risk ordinarily incident to the trade of blacksmith and so the success of such an argument is uncertain. Further, Joseph may argue that Zelda was aware of the danger but continued to work. She therefore consented to the risk: see ICI v Shatwell [1964]. This would amount to a complete defence to Zelda s claim. Page 14 of 19

15 Alternatively Joseph might argue that Zelda was contributarily negligent and that her damages should be reduced accordingly. Cliff v Bill; Cliff v Joseph There can be more than one occupier and the nature of the occupancy determines the nature of the duty: Wheat v Lacon; Fisher v CHT (1966). Consequently both Bill and Joseph may be occupiers provided they both exercise sufficient control over the site in question. The decision in Wheat v Lacon indicates that Bill is the more appropriate defendant: he is likely to have exercised day to day control over the building site. Cliff is a trespasser: the boundary fence indicates the absence of licence to enter the farm; there is no permission to enter for the purposes of committing a crime: see (e.g.) R v Smith & Jones [1976]. Section 1(3) provides that the occupier owes a duty to a non-visitor if: (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) knows or has reasonable grounds to believe that the other is in the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, he may reasonably be expected to offer some protection. The knowledge required to satisfy s1(3)(a) is actual knowledge (i.e. subjective) and that for s1(3)(b) is objective (that is, what would a reasonable person have concluded).) When considering s1(3)(c) the court should have regard to all the factors including the nature of the trespass and the trespasser. There is nothing in the facts to indicate that the occupier had actual knowledge of the danger represented by the ditch. The ditch is necessary to the construction project: it is arguable that the ditch does not constitute something from which the occupier should protect this trespasser. Section 1(1) (a) provides for liability arising by reason of any danger due to the state of the premises or to things done or omitted to be done on them. Section 1(4) provides that the occupier s duty is to take such care as is reasonable in all the circumstances of the case to see that (the non-visitor) does not suffer injury by reason of the danger concerned. The ditch is not defective. It is arguable that the ditch is not a danger due to the state of the premises : see Tomlinson v Congleton Borough Council (2003). Cliff was 15 years old at the time of the injury. This may impact on the nature and scope of the duty owed to him and the availability of defences available to Bill. Both Tomlinson and Young v Kent CC [2005] indicate that there is a higher duty to child trespassers. In Tomlinson, however, the House of Lords emphasised that the duty under OLA 84 was intended to be a lesser duty in both incidence and scope than under OLA 57. There is an assumption in favour of finding a duty to lawful visitors. The opposite is true of trespassers. In Keown v Coventry Health Care NHS Trust [2006] an 11 year old trespasser suffered head injuries when he fell from a fire escape on the defendant s land. The Court held that it would not be right to ignore a child s choice to indulge in a Page 15 of 19

16 dangerous activity in every case merely because he was a child. The Claimant recognised the danger of climbing on the fire escape. He recognised that he should not have climbed on the fire escape. In the present case Cliff chose to engage in the activity in question. He had observed the land in question during daylight yet still chose to enter the site at night. Cliff is therefore likely to have considerable difficulty in establishing that a duty of care was owed and, if one were owed, that it was breached. If both are established Bill is likely to argue contributory negligence, the success of which may be limited by what may expected of someone of Cliff s age: Gough v Thorne [1966]. Sophie v Joseph For reasons already considered above Joseph is the occupier. Sophie s status varied. She first entered as a trespasser but was then granted a limited licence, becoming a lawful visitor. She then exceeded her licence, becoming prima facie a trespasser once more: see (e.g.) The Calgarth [1927], Gould v McAuliffe [1941]. Where, however, there was an allurement which attracted the child to the site of danger then she may be upgraded to the status of visitor (Glasgow v Taylor [1922]) and so should be considered under OLA 57. S2(2) OLA 57 imposes a duty to keep the visitor reasonably safe for the purposes for which she was invited : in this case to look at pigs. S2(3)(a) requires the occupier to be prepared for a child to be less careful than an adult. In this instance this may include climbing on to the roof of a sty, which is a fixed or moveable structure and so constitutes premises (s1(3)(a)). Sophie was injured because she fell through the rotten roof the sty. This was a danger due to the state of the premises (s1(1)). Should the court refuse to accept that there was an allurement then Sophie remained a trespasser and falls to be considered under OLA The criteria set out in s1 (3) appear to be satisfied: Joseph knew or had reasonable grounds to believe the danger existed; he had reasonable grounds to believe that Sophie would be in the vicinity of the danger; the danger was one which from which Joseph should have protected a trespasser like Sophie. The injury was caused by the state of the premises. Joseph was consequently in breach of his duty under s 1(4). Sophie therefore has a good arguable case whether she is regarded as a visitor or not. Sophie is, however, a child of tender years. Joseph may argue under the principle in Phipps v Rochester [1955] that the primary responsibility for protecting a child of her age rested with the parents, who knew that Sophie habitually went to look at the pigs. Alternatively he might argue that the sty was so dilapidated that risk was obvious and the child took the risk: see (e.g.) Liddle v Yorkshire (North Riding) County Council [1934]]; Keown v Coventry Health Care NHS Trust. Page 16 of 19