LA3001 Law of tort Zone A. Introduction. Comments on specific questions

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1 Examiners reports 2015 Examiners reports 2015 LA3001 Law of tort Zone A Introduction Answers to essay questions can be improved by including deeper analysis of leading cases and attention to scholarly articles. Common mistakes in examinations are to misinterpret the question and/or not follow the rubric (for example, despite being told in Question 5 to assume vicarious liability on the part of the health authority, many candidates discussed vicarious liability at length). These errors are hard to eliminate beca they are often the result of candidates reactions to time pressure. However, some greater effort could be given to tutoring candidates on the way they approach their answers. For scripts that scored low marks for reasons other than lack of basic knowledge of legal principle, weaknesses were the result of devoting too much time either to a restatement of the facts in the question and /or a detailed recital of the facts of a case. Although these answers may have demonstrated knowledge of the issues and identified some relevant authority, they lacked focus or a sufficiently detailed analysis. Comments on specific questions Question 1 The Rule in Rylands v Fletcher (1868) is simply one aspect of the general tort of nuisance. Discuss. The question posed here is a fairly familiar one about where the rule in Rylands v Fletcher sits within the general scheme of tort. Rylands v Fletcher (1868); Cambridge Water v Eastern Counties Leather plc (1994); Transco Plc v Stockport MBC (2003). Writing a basic case note of Rylands v Fletcher. Failing to give sufficient account to cases that examine the relation between Rylands and nuisance, notably the Cambridge Water case. Failing to contextualize the answer within debates around the nature of liability, especially the importance of strict liability. 1

2 LA3001 Law of tort demonstrate a good understanding of the development of the Rylands tort without devoting too much time to a description of the case. Answers that gained strong marks were able to examine the ways in which, increasingly, the rule is drawn into a relation with the tort of nuisance specifically drawing on discussion of the requirement of fault /foreseeability of harm in cases such as Cambridge Water. Student extract The rule in Rylands v Fletcher is definitely simply one aspect of the general tort of nuisance. In fact the rule can be defined as a subset of the law of private nuisance which in itself deals with the unlawful interference with the and enjoyment of land or with some right over or in relation to it. The rule in Rylkands v Fletcher has been developed from the case of Rylands itself where the claimant employed contractors to build a reservoir on his land to supply water to his mill. The contractors had found some passages but did not realise that this was in fact connected to mine and when the reservoir was filled, the defendant s mine was flooded. From there began the rule. There is also one more aspect of the general tort of nuisance that is public nuisance. Comment on extract This is an example of the kind of approach to an essay question that would receive a bare pass/third class mark. It consists largely of a very basic case note (with insufficient attention to legal principle and too much factual detail) and touches on the examination question only tangentially mainly by repeating the proposition in the question (relation between Rylands and nuisance) without setting out a reasoned argument or deploying cases post-rylands that demonstrate the connection with nuisance that the answers asserts. Question 2 Tort law has failed to keep pace with modern ways and means of transmitting defamatory statements. Discuss. The core of this question is on the requirement of publication of a defamatory statement and the extent to which the legal requirement is challenged by developments in communication, such as social media. Defamation Act 1996, s.1; Defamation Act 2013, especially s.5; Theaker v Richardson (1962); Huth v Huth (1915); Loutchansky v Times Newspapers (No 2) (2001); Tamiz v Google Inc (2013); McAlpine v Bercow (2013); Godfrey v Demon Internet (2001). Insufficient focus on the theme of publication. Over-reliance on provisions of the 2013 Act, without illustrative case law. demonstrate a good understanding of the principles governing publication and the ways in which the traditional rules are challenged by changes in modes of communication, especially internet and social media. A good answer would be familiar with at least one of the contemporary decisions on publication, such as Tamiz v Google (2013), and would address the question of modern day communication to the issue of defences specifically to the defence of innocent 2

3 Examiners reports 2015 dissemination in the context of s.1 of the Defamation Act 1996 as developed through s.5 of the Defamation Act did very little other than providing a general account of the requirements of the tort of defamation, and the key achievements of the 2013 Act. As is often the case, these failed to focus on the key issues in the question. Question 3 Critically assess justifications for strict liability, drawing on the law governing liability for defective products to illustrate your position. The question invites you to examine the CPA 1987 as an example of the need for strict liability torts. Answers which discuss common law principles other than by way of introduction would be penalised. CPA 1987, especially ss.3 and 4; Directive 85/374 EEC; A v National Blood Authority (2001). Failing to case law (A v National Blood Authority) to elaborate the meaning/scope of strict liability; absence of European background context; mere summary of the CPA 1987 provisions; general account of product liability, with too great a focus on the common law. provide an analysis of how strict liability works and the justifications for strict liability regimes, drawing on A v National Blood Authority. Strong answers would also explain the development of the CPA 1987 from the 1985 European Directive. relied too heavily on text of the CPA 1987, leading to answers that were little more than demonstrations of basic comprehension skills. These answers did not explain consumer protection legislation within the broader regime of strict liability. Question 4 The Supreme Court decision in Woodland v Essex County Council (2013) has the potential to radically extend the duty of care on local authorities in respect of children under their care. Discuss. The question requires you to explore how the Woodland case extends the common law notion of a non-delegable duty of care. You would be expected to display a thorough knowledge of Woodland, especially the judgment of Lord Sumption. Woodland (2013); Wilsons & Clyde Coal v English (1938) (optional). Weak understanding of the case; failure to understand the concept of a nondelegable duty; failure to distinguish non-delegable duties from vicarious liability; confusion with issues relating to duty of care on public bodies more generally (e.g. just, fair and reasonable element of the Caparo test). 3

4 LA3001 Law of tort demonstrate a good understanding of the judgments in the case and its context in terms of outsourcing of public functions. Strong answers would comment on Lord Sumption s 5-stage test. Strong answers could also relate the case to the context of employee/employer non-delegable duties showing understanding of incremental development of the law. offered no more than a factual account of the case; showed confusion between non-delegable duties and vicarious liability; gave a general account of the duty of care test in relation to public bodies. Question 5 Dexter was a 17-year-old boy who was sentenced to three years at a youth offenders institute (a prison for young people) having been convicted of burglary and violent robbery. The institute is called Begin Again. Dexter has a history of self-harming and of suicide attempts. Despite repeated requests from his family and his GP, Begin Again ref to place Dexter on suicide watch claiming that it is short of staff and has a limited budget for replacement staff. Sadly, just three weeks into his sentence, Dexter took an overdose of sleeping tablets and slashed his wrists. He was taken immediately by ambulance to the local hospital where he was treated for his slashed wrists by Sally, the doctor on call, but no other medical examination was carried out on Dexter. Dexter was recovering from his wrist injuries but died two days later of the overdose. Advise Begin Again and Sally of their liability in negligence to Dexter s estate. Assume that the Area Health Authority is vicariously liable for Sally if she is in breach of a duty of care. The core issues are: just, fair and reasonable element of the duty of care standard of care causation (nova causa). Hill v Chief Constable of West Yorkshire (1989); Reeves v Commissioner of Police of the Metropolis (2001); Barnett v Chelsea and Kensington Hospital Management Committee (1969); Bolam v Friern Hospital Management Committee (1957). Failing to identify the just, fair and reasonable issue and focusing only on breach and causation or (even worse) a general account of negligence including duty without addressing the duty question in the context of public bodies. address the duty issues but Reeves as illustration that a duty would likely be found. Answers that consider whether Begin Again could escape a duty of care for Dexter s injuries on the Hill principle would gain credit even where the answer takes Hill to its logical conclusion and determines no duty. The line of reasoning that would gain most credit would suggest that a duty would be owed Reeves is directly relevant to the case of self-harm/suicide. Stronger answers would consider 4

5 Examiners reports 2015 whether the intervening medical examination broke the chain of causation between Begin Again s negligence and Dexter s eventual death having taken account of the fact that negligent treatment is unlikely to amount to a nova causa. tended to place too much (or all) emphasis on breach. Although the breach issue was generally dealt with well the majority concluding that Sally will be unlikely to show that she has reached the standard imposed under Bolam, this aspect of negligence was relied upon too much in weaker answers. Most answers picked up on the fact that the case of Barnett can be d to support the argument that what appears to be a cursory examination would not accord with the actions of a reasonable, competent and careful medical practitioner. Question 6 Robert and Maria decided to hire a caravan on a holiday for a two-week period, accompanied by their daughter (Felicity) and son (Jesse). The caravan site (owned and maintained by Holiday Caravans UK Ltd) was advertised as an ideal location for children. The first three days of the holiday were without incident, but tragedy struck on the fourth day. Felicity and Jesse went to a more secluded part of the caravan site and climbed over a low fence on which was placed a notice saying: Keep out. Danger. Once on the other side, Jesse saw some berry trees and began to eat some of the berries. Soon after, Jesse began to feel very unwell and Felicity took him back to the caravan. Robert and Maria had returned from their lunch and Maria decided to give Jesse a bath and put him to bed to rest and recover from what she believed was the effects of eating too many berries. Maria knew that the hot taps on the bath were defective but did not realise how serious the fault was. The hot water spurted out and Maria was badly scalded. Jesse died during his sleep and it was discovered that the fruit which he consumed was poisonous. Advise all parties as to their rights and liabilities under the Occupiers Liability Acts 1957 and The question revolves around the OLA 1957 and 1984, with emphasis on the duty owed to child visitors/trespassers. Occupiers Liability Act 1957, ss.1 and 2; Occupiers Liability Act 1984, s.1; Tomlinson v Congleton Borough Council (2003); Darby v National Trust (2001); Phipps v Rochester Corporation (1955); Simkiss v Rhondda BC (1983); Jolley v Sutton LBC (2000); Wheat v Lacon & Co Ltd (1966). Failure to give attention to Maria s (mother s) actions; failure to clearly distinguish when/if the 1984 Act is applicable to the child s situation. provide a convincing account of the status of Jessie in respect of the berries taking account of the concept of allurement which is likely to suggest that he falls under the 1957 Act and not the 1984 Act. Good answers would acknowledge the lack of clarity in the question and argue Jessie s position should be considered under both Acts, noting in the context of the 1957 Act that the warning may not be sufficient, given the ease of access to the field of poisonous berries. The case of Simkiss could be d to argue that the parents should not have left the children unattended. Good answers would also pick up on the point that it is not clear that 5

6 LA3001 Law of tort Maria was careful in her assessment of Jessie s situation. Finally, good answers would discuss whether the caravan constitutes premises for the purposes of the OLAs, and conclude that it did. tended to rely too heavily on the text of the OLAs and demonstrated little knowledge of case law. These answers also tended not to make sufficiently clear when the 1957 or 1984 Act would be engaged. Question 7 Hasan and Devla both inherited 90,000 from their recently deceased parents. Hasan decided to invest his money in a country ho retreat and Devla decided to invest in shares. Devla s best friend (Edward) was a financial adviser and during a drinks party advised Devla to invest in a company (JOY UK) which organised children s parties. Devla was very interested in the prospect but wanted to check the company s audited accounts before making a final investment decision. The audited accounts showed a healthy profit and so Devla invested 40,000. Unfortunately, the audited accounts had been prepared by an accountant (Ponsonby) who was dismissed for professional negligence. Hasan s attractive country cottage was found to have been built on insecure foundations and is now subject to a defect which poses an imminent threat to his health and safety. Devla lost the full amount of her investment and Hasan has been advised that he must spend 20,000 to cure the defects in the property. Advise all parties as to their rights and liabilities in respect of Devla and Hasan s pure economic losses. The question requires knowledge and application of the principles governing pure economic losses resulting from negligent acts and negligent misstatements. Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973); Anns v Merton LBC (1978); Murphy v Brentwood DC (1991); Hedley Byrne Co Ltd v Heller Partners (1963); Caparo Industries Plc v Dickman (1990); Chaudhry v Prabhakar (1989). Ignoring or dealing inadequately with the Anns/Murphy line of authority on liability for pure economic losses resulting from defective premises. recognise that Hasan s situation is almost identical to the case of Anns and thus that the solution falls within Murphy v Brentwood, concluding that Hasan would not be able to recover for his financial losses. Good answers would also identify that Devla s situation raises the more substantial questions concerning duty of care in cases of pure economic loss. Good answers would demonstrate a strong understanding of the Hedley/Caparo test and conclude that Edward clearly had knowledge of the purposes for which his statement would be d but the statement was made in a social setting in circumstances in relation to which Chaudhry is unlikely to apply. Moreover, Devla appears not to have relied upon Edward s advice and the issue concerning the audited accounts falls solidly within the Caparo situation the accounts not being prepared for the purposes of making investment decisions. 6

7 Examiners reports 2015 tended to cover reasonably well the issue of statements resulting in pure economic loss but failed to address, or address adequately, negligent acts. Student extract In the case of Hasan he seems to have also suffered an economic loss. According to Spartan Steel v Martin, economic loss is not attainable unless it is based on damage to property or damage to self. Hasan s loss seems to be based on a defect in the property. This is not based on damage to himself or the property. According to Anns v Merton Borough Council, he would have had a claim but this was overruled in the case of Murphy v Brentwood District Council. Hence, according to this case he would not have a claim. He would have to seek redress from the defectives premises act, contract law or his insurers. Comment on extract This extract demonstrates a good understanding of the important distinction between damage and a defect and the author is clearly familiar with the line of authority from Anns through to Murphy. This is also a well-written summary, which condenses the core principles in a clear and succinct manner. Credit would have been received for the concluding sentence which demonstrates an excellent understanding of how tort principles intersect with other sectors of liability. Question 8 Henry and Jancis own a country ho with large gardens. They held a party for around 50 guests. Henry was late getting ready for the party and left a burning cigarette in his bedroom before going out in the garden to join Jancis and some of the guests. The party was going very well indeed until a fire broke out in Henry s bedroom. The fire quickly took hold and Henry s best friend, Michael, narrowly escaped injury when a beam fell from the ceiling support. The incident triggered a latent psychiatric condition and now Michael suffers from recurring nightmares and can no longer hold down employment. Several guests died in the fire and one of the firefighters (Tamsin) suffered post-traumatic stress disorder as a result of seeing the charred bodies. Jancis was at no point in danger of physical harm but he suffered shock after witnessing the ho burn to the ground. Advise all parties on any claims in negligence. Do not advise in relation to the Occupiers Liability Acts. This was a very straightforward problem scenario on recovery of damages for negligence resulting in nervous shock (psychiatric injury). McLoughlin v O Brian (1982); Page v Smith (1996); Alcock v Chief Constable of South Yorkshire (1992); White v Chief Constable of South Yorkshire (1999); Attia v British Gas (1988). Missing the Attia v British Gas point. There was also a tendency to deal inadequately with the situation of rescuers and the implications of White. 7

8 LA3001 Law of tort identify all key issues. In general, strong answers would demonstrate a good level of knowledge of the Page and Alcock decisions and tests for recovery. Specifically, strong answers would cover all of the following: Michael s situation is similar to that of the claimant in Page v Smith; Tamsin falls within the principle in White and is unlikely to recover given that there is no evidence that she was exposed to harm; Jerome will be able to recover on the principle of Attia v British Gas. tended not to supporting authority to illustrate claims and did not draw sharply enough the distinction between primary and secondary victims. Student extract Tamsin would be liable to claim if he suffered from a recognized psychiatric condition. Post-traumatic stress disorder is a recognized psychiatric illness, hence he would be liable to claim (Reilly v Merseyside). However, is he a primary or secondary victim? From the scenario, it is not evident he placed himself in harm s way, hence he cannot claim as a rescuer (White v Chief Constable of West Yorkshire). It is stated he developed his condition from seeing the charred bodies so he would have to claim as a secondary victim. Being a firefighter does not automatically make one a primary victim. He has to prove he was in harm s way. To claim as a secondary victim the case of Alcock v Chief Constable of West Yorkshire provides the elements of proof. The elements of reasonable foreseeability is to be established as it would have been foreseeable that a reasonable man of normal phlegm and fortitude would have developed his condition. He would also have to prove he was in a close and loving relationship with the victims (McLoughlin v Obrien). This he may have difficulty proving as it is not evident from the scenario Comment on extract This is a clear and well supported answer on the position of rescuers. The answer deploys the most relevant authorities, shows a clear appreciation of the criteria for primary and secondary victim status and deals very well with the application of Alcock to claimants who are seeking status as secondary victims following rescue attempts. Question 9 John and Nigel are leaders of two rival gangs who both inhabit the neighbourhood of Webchester. After several small incidents of violence and intimidation between them the gangs decided to meet on a Saturday night to engage in a fight that was intended to determine which one of the two groups would remain in Webchester. In time honoured tradition, the fight began with the gang leaders. However, unknown to John, Nigel had a knife and John was so severely injured that he will require full time nursing care for the rest of his life. The stabbing was witnessed by Fred and Pete, two members of Nigel s gang. In fear for his life, Fred ran across an unattended railway crossing and was killed by a train. The train driver had fallen asleep at the controls and crossed a red light. Nigel locked the other gang member (Pete) in an und shed. Nigel told Pete that he (Pete) would remain in the shed until he promised not to inform the police of the stabbing. Pete, who suffered from a fear of enclosed spaces, injured his hands by smashing through the glass in an effort to escape the confines of the shed. 8

9 Examiners reports 2015 Advise all parties on their rights and obligations in respect of the intentional torts and negligence and any defences that might be raised to defeat an action in negligence. The question expressly requires analysis of relevant defences but answers should also display a good appreciation of relevant cas of action and the general rules on negligence. Law Reform Contributory Negligence Act 1945; Pitts v Hunt (1991); Sayers v Harlow (1958); Ashton v Turner (1981); Bird v Jones (1954); Austin v Commissioner of Police (2009); Joyce v O Brien (2013); Hicks v Young (2015). Failing to focus on defences/focusing instead on general issues of negligence too much on duty/breach matters not much in dispute. Poor identification of cas of actions as if everything must be forced into the framework of negligence. accurately identify relevant cas of action in respect of John, Fred and Pete s injuries and demonstrate basic knowledge of the requirements of trespass to person and negligence. Strong answers would identify all or most of the following: John is unlikely to recover for his battery beca of the ex turpi defence the case is not dissimilar to Ashton v Turner. Fred would be able to make out liability for false imprisonment but on the basis of Sayers v Harlow may be found to have contributed to his injuries as a result of his escape. A strong answer would consider the applicability of Pitts v Hunt given both Nigel and Pete were involved in the gang and relevant associated activities. As far as Fred is concerned, you should briefly address duty of care and breach of duty of the train driver. It is unlikely that there would be a sufficiently strong causal connection between Fred s wrongdoing and his injuries to sustain the ex turpi defence and no evidence of contributory negligence on Fred s part either. Failed to read the question properly and so failed to focus on defences. Where defences were d, the tendency was to over- contributory negligence and to pay insufficient attention to ex turpi. Question 10 Rentavehicle is a large taxi hire firm with a broad-based clientele, including business customers. The Managing Director (Gillian) has consulted you over two recent incidents. First, one of the taxi drivers (Nicholas) allowed a driver from another taxi firm to his (Nicholas s) taxi between 6pm and 12pm on a Friday night. During that period, a young woman (Pamela) who was picked up in Nicholas s taxi suffered a serious sexual assault. The perpetrator of the assault has been identified as the person to whom Nicholas loaned the taxi. His name was Mitchell and he has since been arrested. The second incident concerned a longstanding business client (Troy) was driven to the airport by one of the drivers (Helen). During the drive, Troy asked Helen whether she 9

10 LA3001 Law of tort could stop the taxi outside a restaurant and purchase a takeaway hot meal for him. Troy told Helen that he was allergic to nuts and that, on no account could the meal contain nuts. Helen was anxious to help Troy beca he brought a lot of business to the taxi firm but she was also concerned that she was illegally parked. Helen completely forgot to inform the waiter of Troy s nut allergy. The meal did contain nuts and Troy suffered a severe allergic reaction and died. Advise Rentavehicle as regards its liability in respect of Troy s death and Pamela s assault. This question is about vicarious liability, with emphasis on course of employment but strong answers would not ignore the questions around employee status posed by Nicholas position. Lister v Hesley Hall Ltd (2002); Ready Mixed Concrete v Minister of Pensions (1968); Rose v Plenty (1976); Twine v Bean s Express (1945); Various Claimants v Catholic Child Welfare Society (2012). Failing to address employee status in relation to taxi drivers; failing to assess Nicholas actions in loaning the taxi in the context of course of employment. analyse Pamela s situation in light of the Lister test. A straight application of the Lister test would seem to yield a negative answer it is hard to see how there could be said to be a close connection between the assault and the work of a taxi driver the loan of the car merely gave Mitchell the opportunity to commit the assault and, according to Lister, mere opportunity is insufficient. Mitchell is not an employee (even the expanded notion of employee in the Catholic Child case would not affect his position) and good answers would assess instead Nicholas status and the status of his act of loaning the vehicle. Good answers would also address the issue of employment status given that Nicholas was loaned the car. Strong answers would also argue that Helen was probably acting outside the course of her employment - the role of taxi driver not being connected with ordering meals Rose v Plenty is distinguishable beca the boy trespasser was still delivering milk. Although the tort of negligence is the key aspect covered in the course, vicarious liability crosses the spectrum of torts and in such questions candidates should be prepared to see other torts, such as trespass to the person. Too many answers were compromised beca candidates sought to strain the facts of the problem scenario within the frame of the tort of negligence this worked for Troy but not for Pamela. 10