Law of tort Zone B. Introduction

Transcription

1 Examiners report 2011 Examiners report Law of tort Zone B Introduction This examination paper contained two essay questions. In answering an essay question, candidates must deal with the subject matter, and the particular issues raised in the question. Many answers to Question 2 and Question 3, although on the right topic, did not actually address the precise question. When answering problem questions there is generally a lot of material to be covered and it is therefore essential that candidates use the available time wisely. Here are some general points to assist candidates. Never waste time copying out the facts of the question. It may sometimes be necessary to refer to particular facts, e.g. to distinguish them from the facts of a particular judicial decision, but many candidates wasted time, for instance by copying out the words of Pindar s letter in Question 5. Where something is stated in the question as a fact (e.g. that someone would have recovered if treated sooner), just accept that and do not discuss whether it is really true or what the position would be if it were not. Do not spend a great deal of time setting out detailed aspects of a tort where these are not raised by the particular problem. (See the comments on Question 5 below). A surprising number of candidates referred to no, or almost no, authorities, either statutes or cases. This is not acceptable, even if the facts are well analysed and the legal issues correctly identified. However, candidates do not need to cite long lists of cases to support well-known propositions of law. Where a point of law is clear and not in dispute, it is not usually necessary to refer to more than one or perhaps two illustrative authorities. Where, however, a point is not covered by direct authority or there are conflicting cases, it will be necessary to discuss these in greater detail. Where reference is made to individual cases below, it must not be assumed that these were the only cases candidates were expected to cite. There are often instances where candidates can choose from a number of alternative cases in order to illustrate or support their solution to a problem. 1

2 Law of tort Specific comments on questions Question 1 Aileen is a qualified nurse. She is on the books of the Seacole Agency, which pays her and is responsible for her national insurance payments. Hospitals contract with the agency for her services. Aileen is registered with the agency as a specialist orthopaedic nurse. In February 2009 she went to work at the Statin Hospital and was required by the hospital to work at nights in its orthopaedic ward. While on duty, she wore a uniform with the Statin logo on her blouse. One night in May 2009, Ben, who was recovering from an operation, complained of leg pain. Aileen had already called out the duty doctor three times and was reluctant to do so again. She spoke to Ben and decided in the light of what he told her that the problem was not serious and could wait until doctors came in the morning. In fact a nerve had become trapped and by the time he received treatment he had lost the full use of his leg. Before his operation Ben had been a 19-yearold professional footballer with good prospects with a major club. When he left hospital he was told that he would have to use crutches indefinitely. In January 2010 he was in a car that was swept into a river by unprecedented floods. The car floated downstream and struck a bridge. Ben was knocked out, suffering severe and permanently disabling head injuries. The medical experts are all agreed that the operation on his knee was correctly performed and the nerve damage was not a result of the operation. They are also agreed that he would almost certainly have been unable to escape from the car even if he had been fully fit. Advise Ben. This question is a good example of how candidates should plan their answer. Having read through the question, a candidate might reason in this way: At the start of the story, Ben is a 19-year-old professional footballer with good prospects of financial rewards playing for a major club. At the end of the story, he is unable to play football for two reasons, each sufficient in itself: (a) he has lost the full use of a leg; (b) he is brain-damaged. These two causes are completely unconnected: I am told as a fact that he would have been unable to escape from the car even if he had had the full use of his legs. The leg injury was possibly the result of a tort. The brain injury was not. is completely fanciful, as some candidates did, to discuss whether the weather forecasters should have warned of the flood, or the bridge had been carelessly designed, and it is clearly not implied that the car driver (whether Ben or anyone else) was negligent. So, going through the relevant principles, I can see that the following difficult issues arise and required careful discussion: Was Aileen in breach of her duty of care by failing to understand the seriousness of his injury and not calling a doctor? If so, who, if anyone, is vicariously liable for her tort? If Ben can prove on a balance of probabilities that he would not have suffered the leg injury if a doctor had been called, it is clear that the loss of a playing career was a foreseeable result, but what is the effect of the subsequent car accident on Aileen s liability? 2

3 Examiners report 2011 The law on the following issues is very clear and I need only deal with these matters briefly or refer to the fact that the answer is stated in the question: Aileen as a nurse owes a duty of care to her patient. There is no possible negligence claim against the hospital other than that based on Aileen s failure to call a doctor and/or correctly assess Ben s condition. Any further injuries resulting from the brain damage are caused solely by the car accident and not by Aileen. Mersey Docks and Harbour Board v Coggins and Griffiths, Viasystems v Thermal Transfer and other cases on borrowed and transferred employees. Baker v Willoughby, Jobling v Associated Dairies. Other cases should be used to illustrate other aspects of the question. Common errors There was a failure to understand the causation issue properly, often the result of a misunderstanding of the decision in Baker v Willoughby. That case is about whether the original tortfeasor (the motorist) continued to be liable for the consequences of his action and not about whether he was liable for the loss of the leg in the armed robbery (see of the subject guide). So here the question is not about whether Aileen might be liable for the brain damage, but whether she continued to be liable for the loss of a football career even after the brain damage had occurred. Although it did not greatly affect the mark, a remarkable number of candidates led themselves up a blind alley by not reading the question carefully. Since Aileen had already called out the doctor three times before Ben started complaining, these calls must have been to attend other patients and not Ben. Moreover there is no suggestion that he had refused to respond to those calls. There is therefore no basis on which some unnamed doctor could have been in breach of any duty. A good answer to this question would Have discussed the standard of care expected of the nurse. Many candidates wrongly assumed that the nurse had a duty to call a doctor every time a patient raised some concern. The issue here is whether Aileen used the same skill as a reasonably competent nurse to assess Ben s condition and decide whether or not immediate attention was needed. The significant fact here is that she had already called out the duty doctor three times: is it reasonable for a nurse to want to avoid being reprimanded for not using her own judgement and always calling out a doctor? The next issue relates to vicarious liability and raises a number of factors relating to the relationship between the agency and the hospital, the extent of integration into the hospital and questions of control and supervision. The Viasystems case does no more than suggest that there may be situations where both employers can be vicariously liable: it does not create a rule to that effect. It may be that Aileen had become so much part of the hospital s business that it alone was answerable for her torts (as in the case of Hawley v Luminar). Suppose that the hospital is liable; it would then be liable for the loss of opportunity of Ben becoming a well-paid professional footballer. Candidates would then need to consider the accident in the flood. Does it terminate any liability of Aileen and her employer from the point when the second cause arises? This was the issue considered in the cases of Baker and Jobling, however the facts of this case can be distinguished from those two cases: Mr Baker was affected by a wholly external tort (the armed robbery), Mr Jobling by a natural illness whereas Ben was affected by a subsequent accidental event, and so does 3

4 Law of tort not fit precisely within either authority. A good answer should have considered which authority was more likely to be applied. Observations in Gray v Thames Trains suggest that the decision in Jobling is to be preferred, unless the facts are clearly comparable to those in Baker, but the matter remains unresolved. Candidates should also at appropriate points have included brief discussions of the other issues listed above. Poor answers to this question Gave too much attention to straightforward issues. A number of candidates discussed whether the weather forecasters should have warned of the flood, or the bridge had been carelessly designed. This was completely fanciful and a waste of time. Secondly, it is clearly not implied that the car driver (whether Ben or anyone else) was negligent. Question 2 [T]he ordinary principles of negligence normally provide sufficient flexibility to ensure that an appropriate balance is maintained between claimant and defendant public authority that takes proper account of the latter s responsibilities to act in the public interest. (S. H. Bailey) Discuss the liability of public authorities in the tort of negligence in the light of this statement. This question is specifically directed to situations where a negligence claim is brought against a public authority in the discharge of its distinctively public functions. It does not call for a general summary of the law on duty of care or negligence At the end of answering this essay question, a candidate should consider what they have written and ask, Have I actually considered and explained whether the general principles of negligence are enough for the stated purpose or have I just given an account of cases on the liability of public authorities? Only the first kind of answer could receive a high pass mark. Candidates should have referred to a selection of cases such as Osman v Ferguson, Kent v Griffiths, Capital and Counties Bank v Hampshire CC, East Suffolk River Catchment Board v Kent, Stovin v Wise, D v East Berkshire Health Authority, Jain v Trent Strategic Health Authority, Connor v Surrey County Council. This last case contains a summary of the principles and is referred to in the latest recent developments material. A good answer to this question would Have discussed the policy considerations applicable to claims against public authorities, and the difficulties faced by the courts and commentators in developing principles to accommodate these considerations within the general law of negligence. The courts have sometimes approached the issue by asking whether the action or inaction in question was within the ambit of the statutory power: more recently they have tended to incorporate discussion of the policy reasons within the general concepts of the law of negligence (particularly the Caparo criteria of fairness, justice and reasonableness). This is the argument advanced in the extract quoted. Candidates should have illustrated their answer with cases dealing with statutory powers (e.g. in relation to child welfare and road safety) and non-statutory functions.. Candidates could develop their answers by reference to cases (where the complaint was of negligent action or negligent inaction (including a failure to exercise statutory powers). 4

5 Examiners report 2011 Poor answers to this question Were too general and did not focus on the action and inaction of public authorities. Question 3 In order to be actionable as a nuisance, the relevant interference must be judged to be unreasonable. Unreasonableness is one of the key concepts in nuisance law. Unfortunately, it is also one of the key puzzles. (Steele, Tort Law) Discuss. In answering this question candidates should have concentrated specifically on the role of unreasonableness in the law of private nuisance. Answers might have included references, to, among others, the following cases: St Helen s Smelting Co v Tipping, Adams v Ursell, Christie v Davey, Robinson v Kilvert. Common errors The most common error was a failure to focus on the precise question. A large number of answers contained extensive information on the rule in Rylands v Fletcher and on the relationship between that rule and private nuisance. Candidates could have included a brief reference to, and comparison with, the rule, but certainly should not have discussed it at length. A good answer to this question would Have discussed both issues highlighted in the quotation: a good answer should have carefully explained why the concept was so important in nuisance and why it had proved so difficult to define it. Candidates might also have included a brief comparison with the idea of reasonable in the tort of negligence and some discussion of whether the greater use of negligence concepts such as foreseeability was affecting the character of private nuisance. It is noteworthy that in discussing nuisance the negative concept (unreasonableness) is, as here, often used rather than the positive reasonableness which would be used in discussing negligence. It is clear that not every noise, smell, etc. that interferes with the enjoyment of a neighbour s property amounts to a nuisance. The ideas of give and take, live and let live have often been used here (e.g. the St Helen s case). In answering this question candidates should consider whether reasonableness is being viewed from the perspective of the claimant or the defendant. The position of the claimant is central: is the claimant being asked to tolerate interference from a neighbour that goes beyond what is reasonable? If so, then it is certainly no answer that the defendant had taken reasonable care to prevent it, and certainly not a complete answer that the defendant s activity was useful or socially beneficial. Nevertheless, the claimant might more reasonably object if the activity was being carried on for no great reason. So the nature of the activity may be relevant in deciding whether, from the claimant s point of view, there was an unreasonable interference. Candidates should consider factors such as: how long the interference would last, whether the defendant was malicious (Christie v Davey) and whether the claimant was unusually sensitive (Robinson v Kilvert). 5

6 Law of tort Poor answers to this question Badly misidentified the subject matter: instead of answering the question, many candidates wrote about the assimilation of the rule in Rylands v Fletcher into the general law of nuisance. Question 4 George is a coach driver employed by Safecoaches Ltd. He was driving in the late evening through semi-darkness along a road with a steep drop on the left-hand side. The coach swerved and went off the road, landing on its roof. Several passengers were killed, others were injured and trapped. Rescue services arrived quickly. Henry and Ivan, who live near the scene, offered to help. Henry was asked to stand on the roadside above the accident scene and help to haul up some of the injured passengers. Ivan, a clergyman, was asked to assist with comforting the injured who had been brought out of the vehicle and contacting relatives of the victims. An injured passenger, James, had suffered brain injuries and was taken to the Marstown Neurological Hospital. The information given to Ivan was unclear and he therefore told James s sister Kelly by text that he had been taken to the Marstown General Hospital with the other passengers. Kelly rushed to the General Hospital and could not find James. Three hours later she discovered where he was. When she arrived at the neurological hospital, she was told that James had died a few minutes earlier. He had briefly regained consciousness and had asked to see Kelly. George says that the coach just veered off the road, but he does not know why this happened. Investigators can find no sign of any mechanical faults. Advise, Henry, Ivan and Kelly, who have all suffered recognised psychiatric illnesses. Candidates should have started by considering what tort, if any, had been committed (in this case whether there is any negligence on the part of George for which Safecoaches Ltd is vicariously liable) and then considered whether the three claimants can establish a right to damages for their psychiatric injuries. In the case of Kelly there is an alternative line of reasoning that can be followed, see below Scott v London and St Katharine s Dock and other authorities on proof of negligence. Page v Smith, Alcock v Chief Constable of South Yorkshire, White v Chief Constable of South Yorkshire and other authorities on psychiatry injury. Common errors A failure to consider breach of duty before discussing issues of damages. A good answer to this question would have first considered the conduct of George, who clearly owed a duty to his passengers and was certainly in the course of his employment with Safecoaches. The difficulty for the victims is how to prove there was a breach of duty, given that there is no evidence of any mechanical faults in the coach. Is res ipsa loquitur appropriate here, since the coach was under George s control and a coach does not usually leave the road unless there is negligence, and George has not been able to offer any alternative explanation? Of the three victims, only Kelly has any connection with a primary victim (James). She would have to overcome the difficulties (a) that she is not with a relationship where love and affection is presumed and (b) that there is a considerable delay and she does not reach the hospital until James has died. However, Kelly was the person James had asked for, and the delay was because Kelly had been 6

7 Examiners report 2011 misinformed and she had been frantically trying to locate James. Henry and Ivan would have to establish a claim as primary victims or on some basis other than the conventional primary and secondary victim bases. Henry s case would seem hopeless unless he could establish that his position on the bank put himself in danger of falling (White). Ivan does not seem to be in any physical danger, although he has been given a particularly harrowing role. On the other hand as a clergyman he would be experienced in comforting the dying and bereaved, and his position is not unlike the professional rescuers in White. An alternative line of reasoning for Kelly would be that the rescue services were negligent in giving unclear information to Ivan who, in turn, misled her as to where James was to be found. Poor answers to this question Included where candidates began by reminding themselves that psychiatric injury is not a tort but a species of damage, and then failed to act on this. Question 5 The Nemea Sports Club in the town of Nemea has been at the centre of controversy. For a long time its facilities had been of poor quality, but they have been available for low charges to local children, the elderly and disadvantaged groups. A group led by Heracles, a local businessman and owner of a sports clothing shop, is trying to take over the club. They want to upgrade the facilities so that they will be suitable for holding national and international sporting events, but for local residents the club would be available only at unsocial hours and at greatly increased charges. The Nemea Herald published a letter from Pindar reading, I have recently moved to Nemea. One of my reasons for the move was the availability of sports facilities. We have four sons who are mad keen on sport, but there is no way we could afford the charges proposed at the Sports Club. Heracles has a contemptible lack of interest in the feelings of local residents. He is only interested in those who can afford inflated prices for his second rate merchandise. Bunter runs a website, Couchpotato.org, which has a considerable following among people with no interest in sport. He blogged, I ve just been sent this link by a supporter. I haven t checked it out at all. One lot seems as stupid as the other. Discuss whether (a) Pindar and (b) Couchpato.org may be liable for defamation. In answering this question it is essential for candidates to take great care to identify the main issues and plan their answer. Advice is sought only in respect of claims against Pindar and against Bunter in respect of his blog. Pindar may be sued by Heracles in respect of his letter to the local press (remember, he had sent a letter to the letters page and was not a journalist as many answers wrongly said). The main issues here are the meaning of the words used and whether he has any defences, particularly fair comment. There may be some argument that, if he is liable, he may be responsible for the further publication. Bunter may be sued by Heracles and/or by Pindar in respect of his publication (with commentary) of Pindar s letter by a link from his blog. There is an unresolved issue as to whether such a blog should be treated as libel or slander, and the main issues of substance are whether Bunter has actually repeated the original defamation and/or has been responsible for a new defamation and what defences he might have. 7

8 Law of tort There are several cases that could be used to illustrate various issues, but a discussion of the Supreme Court case of Joseph v Spiller would have been particularly appropriate. Common errors Some candidates wrote about irrelevant issues, such as whether there might be another person called Heracles who said the letter could be taken to refer to him. Other candidates listed the four situations where slander is actionable per se without indicating whether any of them might be relevant. A good answer to this question would Have first discussed the content of Pindar s letter to identify which parts of it could be defamatory as follows: (i) that Pindar has no interest in the feelings and wishes of local residents: (ii) that he is contemptible; (iii) that his motivation is to enhance his own financial interests and not to promote sport; (iv) that his merchandise is second-rate. These issues should have been considered in the light of the meaning of defamatory, although it is certainly unclear whether promoting self-interest is defamatory. The letter is clearly published and refers to Heracles so, if the letter is in any respects defamatory, defences have to be considered: are the allegations facts (which would have to be proved to be true to satisfy the defence of justification), or comments (do they meet the requirements of fair or honest comment)? This is particularly difficult in relation to the word contemptible. The letter seems to relate to plans for the sports centre that were well-known and the subject of discussion in Nemea. A number of candidates knew that the Supreme Court in Joseph v Spiller said that fair comment should be renamed honest comment, but did not seem to know much about the substance of the case. Lord Phillips in Joseph spoke of two relevant issues: (i) determining whether the words are facts or comment, particularly where the implication is that the claimant is hypocritical or improperly motivated; (ii) the extent to which the defendant has to identify the facts on which the comment is based. Two separate issues arise in relation to Bunter s blog: (i) he has provided a link to Pindar s letter but has he thereby published the letter or merely reported the fact that a row is going on in Nemea about the future of the sports club? (ii) he has written critically about the events in Nemea (that both sides are stupid). If these words are defamatory, can he rely on fair comment and privilege (Reynolds defence) as defences to any action brought by Pindar or Heracles in respect of his own words rather than the words written by Pindar? Poor answers to this question Failed to address the issue of defences at all and in particular failed to discuss honest comment. 8

9 Examiners report 2011 Question 6 Alan owns a number of holiday cottages, which he lets out to visitors. Betty and Clive have booked one of these cottages. On the day before they were due to arrive, Alan discovered that the electric light in the bathroom was not working. He had difficulty in finding an electrician who could come at short notice. He had however noticed a card placed in the window of a local newsagents shop which read: For all electrical and other DIY problems. Fully qualified. Speedy service. Call Dave on mobile tel Alan called Dave who came promptly. After he had completed the work, he laid his heavy equipment on a shelf fixed to the wall in the bathroom. The shelf gave way and the equipment fell on Dave s leg, causing him serious injuries. Soon after arriving at the cottage Clive went for a shower and received a severe electric shock. Advise Alan as to his liability in tort to (a) Clive and (b) Dave. This is a fairly straightforward question on the Occupiers Liability Act Both the claimants are lawfully on the premises and so the 1984 Act is not relevant. It does call for a good understanding of the 1957 Act and an ability to apply it to the particular facts. Occupiers Liability Act 1957, particularly ss.1, 2(2), 2(3)(b) and 2(4)(b), Roles v Nathan, Haseldine v Daw and other cases on independent contractors. A good answer to this question Would have considered whether the shelf was a danger due to the state of the premises and whether an occupier could be expected to take precautions against the risk that a bathroom shelf would collapse under the weight of a heavy object. What sort of items would normally be placed on a bathroom shelf? If (which is possible) there was a danger, has Alan any defence? Section 2(3)(b) does not apply directly, because it was not a risk ordinarily incident to Dave s visit, but similar reasoning may be invoked, perhaps by way of contributory negligence. It could be argued that Dave should have known that the shelf was not intended to have tools placed on it and therefore might not be suitable. Clive would have a stronger case. A guest who received an electric shock in the shower (assuming he has used the equipment in the proper way and has not received any relevant advice) would seem to have suffered an injury resulting from a danger due to the state of the premises. Alan would seek to rely on s.2(4)(b). Candidates would of course have to show that there was a direct connection between Dave s actions and the electric shock. Candidates should consider whether electric repairs are something to be entrusted to an independent contractor (yes?), whether steps had been taken to ensure that Dave was competent (doubtful) and whether steps had been taken to see that the work was competently done (what can be expected of the owner of holiday cottages in such circumstances?). Dave was recruited in a hurry through a card put through the letter box and he only had a mobile phone and no indication of previous experience. Should Alan have taken further steps to check on Dave s competence? If so, what in the time available? The work had to be done urgently, but perhaps the owner of holiday cottages could be expected to have arrangements with local tradesmen to carry out necessary remedial work. 9

10 Law of tort Question 7 The (fictitious) Explosives Industries (Safety Requirements) Regulations 2008 include the following provision: An employer shall ensure that, once in each calendar year, all employees who handle or otherwise come into contact with or are exposed to the effect of explosives shall undergo a medical examination. Richard has been employed at an explosives factory run by Semtex plc for two years. He was suffering from increasing deafness but had always managed to disguise his difficulties. He was however afraid that, if this were discovered, he would lose his job. He therefore persuaded his identical twin brother Stanley to take his place at the medical examination in While working at the factory, he suddenly collapsed and let a small quantity of explosive material fall into water. There was an explosion and Richard and his fellow worker Terry were knocked unconscious. Una, a receptionist, heard the explosion and rushed into the laboratory to help without putting on protective clothing or headgear. She was hit by a fall of plaster from the ceiling, which had been loosened by the explosion. It is agreed by all the medical experts that (i) Richard had collapsed because of a defective heart valve, (ii) this would have been discovered at a medical examination, (iii) the defect was a congenital condition and was not in any way caused by his work in the factory. Advise Richard, Terry and Una who have all suffered serious long-term personal injuries. In this problem there are three potential claimants who are all employees of the same company but their circumstances differ from each other. Claims might be based on the tort of breach of statutory duty in respect of the 2008 Regulations or in respect of the employer s common law duty of care to employees. Generally it is more convenient to deal first with the narrower of the two claims (breach of statutory duty) and then consider the broader claim in negligence. Cases on civil action for breach of statutory duty (e.g. Morrison Sports Ltd v Scottish Power UK, Hartley v Mayoh, Gorris v Scott). Wilsons and Clyde Coal Co v English and other cases on employer s liability. Common errors A common error was to ignore what had been agreed by the medical experts and go on to discuss matters that were specifically ruled out by that expert evidence. Most candidates failed to subject the text of the regulation to any tests of statutory construction to see what the extent of the duty was and on whom it was imposed. A good answer to this question would have considered the scope of breach of statutory duty. On the face of it the statute has been contravened: Richard did not have an annual medical examination as the statute required. Candidates should therefore consider whether this can be the basis of an action by any or all of the three claimants. Does the statute give rise to a civil action at all? The courts tend to conclude that an action is not available except in the area of industrial safety, and so that is a possibility on these facts. Has the statute been breached? This requires some consideration of the state of mind required by the regulations and attention to the precise words of the regulations. The regulations say that the employer shall ensure that there is a medical examination rather than shall arrange a medical examination or shall take reasonable steps to ensure that the employee is examined. Does that mean that 10

11 Examiners report 2011 they are liable even if they are not to blame for the failure? Alternatively, even if liability under the regulations is based on fault rather than strict liability, should the employer have taken more stringent steps to check the identity of the person undergoing the test? As an alternative, candidates could consider whether the employees themselves are under a statutory duty to undergo the medical examination, and failure to do so might make the employer vicariously liable. However, the regulation appears to place the duty only on the employer and not on the employee. If there is an actionable breach of duty, it then has to be asked if the damage was of the kind that the statute was intended to prevent and to ask whether the appropriate test of remoteness would be foreseeability and, if so, whether the injury to the claimants was foreseeable. Finally, in respect of Richard specifically, has he a claim even though it was his own action that caused the employer to be in breach of the regulations and, if he has, is it at least partially defeated by contributory negligence on his part? If this action is not available to some or all of the claimants, the next question is whether a breach of employer s non-delegable common law duty of care is available, e.g. by failing to employ competent fellow workers. If so, was Una contributorily negligent by failing to wear safety clothing? Finally, by failing to submit himself to medical examination, could it be said that Richard was in breach of a duty of care to fellow employees? It might be argued, that if, because of his undiagnosed deafness, he caused an accident by not hearing a warning, he might be liable, but perhaps the actual injury here was too remote a consequence. Question 8 Alpha and Beta planned to rob a branch of the Dodgy Bank in Slumtown. They asked a friend Gamma to drive them to the scene. They knew that Gamma had a number of convictions for motoring offences and was at the time disqualified from driving. When they reached the scene, they asked Gamma to wait in a nearby side street with the engine running in order to make a quick getaway. The bank staff managed to raise the alarm and Alpha and Beta fled empty-handed. Alpha managed to get into the car, but Beta was only half in when Gamma panicked and set off. Beta was thrown out of the car and suffered serious injuries. Gamma drove at speed out of Slumtown. He saw Delta crossing the road some distance ahead and kept his hand on the horn as he sped towards him. Delta was panic stricken and stayed rooted to the spot. Eta, a pedestrian, saw what was happening and tried to pull Delta back. Gamma swerved at the last moment and almost avoided Delta and Eta, but struck them a glancing blow, knocking them over and causing serious injuries. After they left the town, Gamma set off for home driving within the speed limit. However, Alpha started arguing with Gamma about the way he had left Beta behind. Gamma s attention was distracted and he failed to notice a broken down van at the side of the road. He drove into it and caused serious injuries to Alpha, who was not wearing his seat belt at the time. Advise Alpha, Beta, Delta and Eta. This question raises a number of issues about the tort of negligence in relation to motoring and possible defences. There are four claimants and again careful planning of the answer is needed. It might be best to deal first with Alpha and Beta (who were both participants in the original venture) and then with Delta and Eta (who were not). 11

12 Law of tort Pitts v Hunt, Ashton v Turner, Law Reform (Contributory Negligence) Act Road Traffic Act 1988 s.149(3), Nettleship v Weston. Common errors A very large number of candidates failed even to mention the defence of illegality (ex turpi causa) which is an essential element of the question. A good answer to this question would Have pointed out that on the face of it Gamma had fallen short of the appropriate standard of care in respect of Alpha and Beta. There is a theoretical argument that since they both knew that he was disqualified they could only expect a lower standard of care, but this kind of argument was rejected in Nettleship v Weston. So Gamma would rely on defences, the first of which is illegality. In respect of Beta this is a strong argument, since the damage occurred in the course of a joint illegal activity and the reasoning in Pitts v Hunt would seem to be applicable. The argument is less compelling in respect of Alpha, since Gamma s carelessness and hence Alpha s injuries were totally unconnected to the original illegal purpose of their journey. The second defence is illegality, but it would require some ingenuity to get round section 149 of the 1988 Act. The third is contributory negligence. There is a general argument that to accept a lift from a driver known to be disqualified is a failure to take reasonable care of one s own safety. In respect of Alpha there are further arguments that he had distracted Gamma s attention and that he had failed to wear a seat belt. Gamma may have been in breach of duty to Delta by trying to scare him out of the way (was it unreasonable not to realise that Delta might have been paralysed by fear and unable to react?). Some candidates suggested he was liable for battery, and that is not an absurd, though an unlikely, suggestion. In respect of Eta, the law concerning the rights of rescuers should have been considered. 12