Examiners report 2010

Transcription

1 Examiners report 2010 Examiners report Law of tort Zone A General remarks Too many candidates spent too long on their first answers, leaving themselves with inadequate time to give four complete answers. If you find yourself with only three answers and fifteen minutes left, it is much easier to gain marks by starting a fourth answer than by embellishing one of the other three. In this situation the answer given should not simply be the first fifteen minutes worth of what would have been the complete answer. Nor should it simply be a list of the headings of the topics that would have been covered. The answer should attempt to identify those issues where there is room for argument as to the correct view. It should give some indication of the arguments that would be developed if there had been sufficient time left, not merely identify the issue. It is, however, much better to plan your answers so that you have enough time to complete all four questions. One reason for having inadequate time to attempt or complete a fourth answer is that time has been wasted in various ways. Here are some common examples how candidates waste time in the examination. Repetition of facts in the question. It may often be necessary to refer to particular facts of a question in an answer, but this can be done by identifying the salient facts or words. It is never right to copy out the whole question and very seldom right to copy out a whole sentence. Repetition of parts of the answer. If you have introduced, say, an answer to a defamation question by setting out a statement of the three things that a claimant must establish, there is no reason to repeat the content of these introductory sentences when you apply them to the facts of the problem. Answering unasked questions. There were striking cases where candidates dealt with issues that they were specifically instructed to ignore (see the comments on question 1 below) or they were indirectly instructed to ignore (see question 2). Specific comments on questions Question 1 During the banking crisis that started in 2008 Failing Bank plc set up a scheme under which some of its information technology specialists would be seconded to work one day each week for local charities to offer them appropriate advice. Under this scheme Rita was seconded to work for Priti 1

2 Law of tort who runs a small charity that gives training in basic computer skills to young adults with special educational needs. One afternoon Rita, while working for Priti, saw Sam, one of the young adults whom she had been teaching earlier, getting into a lift. She followed him into the lift and, as it descended, said to him, Why don t you come home with me to-night? I ll get you drunk and then we can have some fun. Sam was petrified and, when the lift doors opened, he rushed to get away. Sam had very poor eyesight and ran into a glass door. He was very badly cut and has permanent scarring to his face and neck. Advise Sam. [Do not consider any possible claim against the occupiers of the building.] There are in principle three kinds of claim that Sam might consider. The first is to argue that Rita has committed a tort in the course of her employment with Failing Bank or with Priti: discussion of this possibility should have taken up most of the answer. Many candidates assumed or explained that Rita had committed an assault, but this is rather unlikely as Sam could have had no reason to fear the immediate application of physical force. More likely she is negligent, especially as she had some knowledge of the characteristics of the people she was teaching and might foresee their likely reaction. She certainly appears to be an employee of Failing Bank, but consideration has to be given as to whether she has become instead or in addition an employee of Priti. Is the presumption that a borrowed servant normally remains the employee of the lender applicable? There is then the question of whether the facts can be brought within the principles in Lister v Hesley Hall and other cases so as to make the employer(s) vicariously liable. A second line of argument is that the Bank (or, less probably, Priti) was primarily (as opposed to vicariously) liable through being in breach of a duty of care. This does not require extensive discussion: it is sufficient to raise the possibility that, if the Bank had reason to know or believe that Rita was a temperamentally unsuitable person to work with vulnerable people, it might be in breach of duty. A third line of argument is that the glass door was a danger on the premises. However the instructions in the question say quite clearly that this is not to be discussed. Nevertheless a surprising number of candidates disobeyed the instruction. No marks can be given for this and it takes up valuable time that should have been devoted to the appropriate issues. Question 2 Jasper, aged 8, was a resident in Demonic Hall, a care home run by the Bruteshire County Council. Bruteshire Social Services had taken him into care as his parents could not control him. He had tried to stab his mother and had attacked other children at school. One afternoon, after he had been refused a second helping of ice cream, he wandered out of Demonic Hall carrying a carving knife that he had found lying in the kitchen. Nell, an elderly passerby, asked him whether he needed help, but he slashed her arm with the knife and ran off at speed. He ran into the path of a car, which was being driven with reasonable care. Jasper s injuries were very serious and he was taken by air ambulance to a specialist spinal injuries unit. Nell s injuries were not thought to be serious and she was taken by road ambulance to the Bruteshire Hospital. The ambulance was delayed in heavy traffic for almost 2

3 Examiners report 2010 an hour. Nell began to lose a lot of blood and became very distressed. Before the ambulance eventually reached hospital, she suffered a stroke. Despite receiving expert medical treatment, Jasper is now paralysed and has to use a wheelchair. Nell now has problems with speech and mobility. Advise Jasper and Nell. The central issue is to identify the nature of any duty owed to take care to prevent a resident of Demonic Hall from escaping. It is not enough to produce a general answer about proximity, foreseeability and whether it would be fair, just and reasonable. Attention should instead focus on cases stemming from Dorset Yacht (in respect of Nell) and Carmarthenshire County Council v Lewis (in respect of Jasper himself) and whether the fact that Jasper had access to the kitchen and to knives and could apparently easily leave the building demonstrated a breach of any duty of care for which the county council might be liable. The positions of Jasper and Nell then require separate treatment. The question states that the car was being driven with reasonable care and that Jasper was given expert medical treatment at the hospital. This means that the duties of care owed by the driver and by the health authority had not been broken; therefore it was not appropriate to discuss claims against them. The relevance of these incidents relates to the original liability of the county council: since there is no negligence on the part of the driver or the hospital, the council would not be able to argue that there was a new intervening cause (nova causa interveniens). Further, since the duty on the council was to protect Jasper against injury, it would be difficult for them to argue that his own wrongdoing provided any sort of defence (compare Reeves v Metropolitan Police Commissioner). In relation to Nell, it is necessary to consider whether and to what extent the original failure to diagnose the seriousness of her condition or the delay in transferring her to hospital might amount to a breach of duty by the health authority. If there is a breach of duty, the effect it might have on the liability of the county council should be discussed. Question 3 The Grungetown Chamber of Commerce, which represents the interests of small businesses in Grungetown, has objected to new regulations introduced by the Grungetown City Council. At a meeting of the Chamber, a resolution was passed that members of the Chamber would not do any work for councillors until they had agreed to meet representatives of the Chamber to discuss their concerns. Edward Fish, Michael Haddock and Robert Salmon are members of the Chamber. Edward Fish does not approve of the protest and continues to carry out building work for councillors. Michael Haddock, an electrical contactor, has joined the protest but one evening carried out work without payment for a neighbour, an elderly councillor, when all her lights fused. Robert Salmon has done no work for councillors. A recent issue of the Chamber of Commerce newsletter carried an editorial which read, Sadly some of our members have no sense of loyalty. They have preferred their own immediate financial interests to the long-term collective good of our members. Shame on them! We do not need to name them. They know who they are. There is a row of small drawings of fish at the foot of the editorial. 3

4 Law of tort The newsletter is sent to all members of the Chamber. An unknown person left a number of copies on display at the library of Grungetown Technical College and they remained there for two weeks. Advise Fish, Haddock and Salmon as to any claims in defamation. There are several ways in which the relevant material could be organised. Perhaps the best is to start with issues arising out of the original publication in the newsletter and later discuss liability in respect of copies left in the library. The three claimants can be considered together. There is no doubt that the original article has been published and that, if the article is defamatory, it is a libel. These matters should be disposed of very briefly. Most candidates were sure that the words were defamatory, but there is scope for argument. The question is whether right-thinking members of the public would think less well of the claimants and not whether members of the chamber would do so. Would the public think less well of people who get on with their jobs rather than join a political protest? The protesters might even be committing one of the economic torts (although only answers on defamation were asked for). It may be however that the suggestions of greed and disloyalty are enough to make the article defamatory. The issue of reference to the claimant is the most important aspect and was the cause of a serious error by many candidates, who did not consider the facts carefully enough and ended up deciding that the claimant with the strongest case (Salmon) had no case at all. The thing that links the statement with the unnamed claimants is the drawings of fish: the surname of one of them is Fish and the surnames of the other two are the names of common fish. A reader might therefore conclude that all or any of them were the subject of criticism. A number of candidates reasoned that Salmon could not be referred to because he had not joined the protest, but this cannot be correct. Salmon s anxiety is that people who know him and read the article will come to the false and defamatory conclusion that he was not protesting. Then it is necessary to consider the available defences. The remarks that suggest that the claimants have continued to work for councillors and been paid for the work are clearly allegations of fact. They are true in respect of Fish, partly true in respect of Haddock and false in respect of Salmon. To what extent then are they protected by the defence of justification? Are the remarks that suggest that the claimants are greedy or disloyal facts or comment? If they are to be treated as facts, it would be difficult to establish that they are true in respect of any of the claimants, but, if they are treated as comments, they might be shown to be fair in so far as the facts on which they are based are true. If the author intended that the words referred to the claimants, then he may seek to rely on the defence of qualified privilege. If, as seems likely, he did not intend that the words refer to Salmon (and perhaps not to Haddock either) then he may seek to rely on the defence afforded by sections 2 to 4 of the Defamation Act Finally there is the question of the copies left at the Technical College. This gives rise to three possible issues. (i) Can it be assumed that there is publication or would it have to be shown that any copies had been taken or read? 4

5 Examiners report 2010 (ii) (iii) Can the original author be liable for the extended publication? Would the College authorities be liable or can they rely on section 1 of the Defamation Act 1996? Question 4 [C]ases have made clear that, as a matter of law, if A owes B a duty of care, A must attain the standard of a reasonable person in order to discharge that duty. In short, the duty is one to take reasonable care. The courts have recourse to a range of considerations in deciding whether this standard has been met. (Street on Torts) Discuss. This question was about, and only about, the standard of care in a negligence action, i.e. whether or not a defendant was in breach of the duty of care. It was not, as a number of candidates thought, about the circumstances in which a duty of care arises. Such answers could receive at most a token mark. Nor did it call for what some candidates provided, a summary of the whole of the tort of negligence. It was reasonable to put the answer in the overall context of the tort of negligence, but this should have taken at most four of five lines. A good answer should have gone on to explain the objective nature of the standard of care and what the attributes of the reasonable person might be. It should then have discussed the range of considerations. Most candidates did refer to the importance of measuring the defendant s conduct against what would reasonably be expected of the group to which the defendant belonged such as doctor, engineer, motorist or child. A large number, however, failed to consider a different set of extraneous considerations such as: the likelihood of damage occurring if particular precautions were not taken; the likely seriousness of any harm that did result; the social utility of the defendant s conduct (almost no candidates mentioned section 1 of the Compensation Act 2006); the costs of eliminating or minimising the risk. Question 5 Where the claimant complains of a nuisance created by the defendant, the law is quite straightforward: complications arise in deciding when defendants should be liable for a nuisance which they have not themselves created. Discuss. The first half of the question required a general account of the elements of the tort of private nuisance. The second half required a more detailed consideration of those situations where the nuisance arose on the defendant s land, for example because it was created by an employee, guest, tenant, licensee, trespasser or predecessor in title or arose as the result of natural processes or occurrences. Some reference to the rule in Rylands v Fletcher could have been included, but it was a mistake to regard the second part of the question as concerned with that rule alone. 5

6 Law of tort Question 6 Wurzel, a farmer, organised a funfair on two of his fields to raise funds for a charity that he supported. Among other attractions he contracted with Dan s Daredevilry Ltd, a company that owns and supplies fairground equipment, to set up a chair-o-plane. Louis, aged 12, attended the funfair with a group of friends. His friends suggested taking a ride on the chair-o-plane but Louis protested that he suffered from vertigo and was terrified of heights. Dan overheard this and said, Your mates will all think you are a great wimp. There s nothing to it. It s just like being in a plane. There s a bar holding you in. You can t fall. Louis therefore went on the ride but panicked and started screaming, Stop it. Let me out. I can t stay here. When his chair reached the bottom of the ride, he found that he could squeeze up from under the bar to jump out, but hit his head on a post and was knocked out. He was taken to hospital. His mother, Stacey, was called and went straight to the hospital. Louis received expert medical treatment but never regained consciousness. After several weeks doctors told Stacey that he was in a persistent vegetative state and she agreed that his life support machine could be switched off and Louis died. Stacey had been at his bedside for almost all the time since the accident. She now suffers from a serious psychiatric illness. Advise Stacey in respect of Louis death and her own illness. [Do not discuss any possible liability of the manufacturers of the chair-o-plane.] The main claim arising out of Louis death would arise under the Occupiers Liability Act Wurzel is clearly the occupier of the land on which the funfair is situated, but would try to argue that under section 2(4)(b) he is not in the circumstances liable for the fault of the independent contractor. Dan s company could well be treated as the occupier of the chair-oplane itself, and the ride could fall short of appropriate standards in that passengers were not held sufficiently securely and could escape under the bar and be injured in the process. Alternatively there might be a negligence action against Dan for encouraging Louis on to the ride despite his protestations, or even an action in false imprisonment for refusing to release Louis when he demanded to be let off before the ride had been completed. It is stated that Louis received expert medical treatment and so there is no room to argue that the hospital was negligent or that their determination that there was no hope of improvement in his condition was unsound. Stacey clearly satisfied a number of the criteria for a successful claim for psychiatric injury: she suffers a recognized illness and she is presumed to have a close tie of love and affection with Louis. The discussion should therefore focus on the degree of physical and temporal proximity. She is with Louis while he is unconscious and when he dies. The element that may be lacking is that of a sudden assault on her senses. To what extent do the cases on claims by secondary victims include those who witness a prolonged period of suffering rather than a sudden and shocking incident? 6

7 Examiners report 2010 Question 7 Vasily started work as a labourer with Go-easy Industries plc in March He had only recently arrived in the United Kingdom and his understanding of English was poor. Part of his duties included sweeping out the floors and kilns. He was given a rotary cleaner for use on the floors and a special suction cleaner for use in the kilns. Both were manufactured by Flotsam plc. A label attached to the rotary cleaner read: CAUTION. AVOID USE AT HIGH TEMPERATURES. Vasily found that it was difficult to reach remote corners of the kiln with the suction cleaner. He noticed that a few of his colleagues used the attachments to the rotary cleaner to reach these difficult areas, although most did not. One day in August 2009 he reached into the kiln with an attachment to his rotary cleaner. The plastic started to melt and, as Vasily tried to pull it out, he suffered extensive burns to his arms and chest. Although there have been incidents where the rotary cleaner has been damaged by use at high temperature, there has been no previous case where serious injuries have been caused to the user. Advise Vasily. Vasily could attempt two lines of argument in a claim against his employer. The first is to argue that the equipment (the rotary cleaner) was defective. If Vasily has a claim against Flotsam (the manufacturer) under the Consumer Protection Act 1987, it seems that the Employers Liability (Defective Equipment) Act 1969 is so worded as to enable the claim to be brought against Go-easy, leaving Go-easy to pursue a contractual claim against Flotsam. So is the equipment defective, either because there is a fault with this particular cleaner or because there is a design fault? The argument for the defendants will principally be that the instructions made it clear that it was not be used in the way that Vasily had used it. Some candidates made a number of perceptive points, notably that: (i) the instructions merely said to avoid use at high temperatures and this does not necessarily mean that it is dangerous to do so, merely that the machine will not function or may be damaged (ii) since the cleaner is intended for industrial use and many immigrant employees may not have adequate English, the instructions should be clearer. The defendants may try a separate argument, that the damage to Vasily was unforeseeable, but the terms of the 1987 Act would seem to rule that argument out. If it turns out that the cleaner was not defective under the 1987 Act, there is an alternative argument against Go-easy Industries, namely that they had failed to satisfy their general duty of care to employers as set out in Wilsons and Clyde Coal v English. In particular they could be at fault, since they should have known that Vasily s command of English was inadequate, in not ensuring that he understood the instructions and in not taking steps to prevent other employees setting a bad example. It is possible that Vasily was contributorily negligent. A number of candidates discussed vicarious liability, but this was quite wrong. An employer cannot be vicariously liable for injuries that a careless employee inflicts on himself. 7

8 Law of tort Question 8 Gary was one of a syndicate of young men who won 2,000,000 in the National Lottery. Gary mentioned his good luck to Hugh, a fellow member of his football club, because he knew that Hugh s father Ivor was a retired stockbroker. Hugh said, I d an from Dad last night tipping the Lydia Special Situations Fund. It s run by a great manager apparently. Dad said to pass the tip on to my friends as well. Gary invested a substantial part of his winnings in the fund. He also passed the tip on to other members of the syndicate and one of them, Jake, also invested in the fund. Gary decided that he should now make a will and asked Kelly, who is not a solicitor but runs a will-drafting advisory service, to help. He wanted the residue of his estate to be left to his girl friend Martha. Gary was killed a few months ago. It now turns out that the will prepared by Kelly was badly drafted and is invalid. His estate therefore passes on intestacy to his mother, Nancy. The value of the Lydia Special Situations Fund has fallen by three quarters since Gary and Jake purchased their holdings, a far worse performance than any comparable investment. At the time of Ivor s most financial commentators were not recommending the Lydia Special Situations Fund, although a few were. Advise Nancy, Jake and Martha. There are three separate claims to be considered in this question and it is particularly sensible to have a clear idea of the structure of the answer before beginning. Nancy s claim is that the estate that has come to her as the result of her son s death intestate is diminished in value because of the collapse of the Lydia fund. Her primary claim would be against Ivor who gave the initial advice. This needs an analysis of the relationship between the parties in situations involving misstatements causing economic loss, following from cases such as Hedley Byrne v Heller. It is true that Ivor advised his son and agreed that the advice could be passed on to others, but he thought that he was addressing young men with a little spare cash that they might want to invest. If he had known he was advising two men who had come into a substantial fortune, he should have approached the request in a different way. Gary (and perhaps also Jake) should have realised this when investing large sums. The fact that the fund has fallen substantially in value does not prove that the advice was negligent: some discussion is needed of the appropriate standard of care in cases of investment advice. Jake s claim is similar to that of Nancy, although he might also argue that Gary is at fault in not explaining to Jake the source and context of the advice he was passing on. Martha s claim is entirely different: her complaint is against Kelly. Do the principles in White v Jones apply in the same way to a will-writing firm? If so, how are they to be applied in the present situation? 8