Chief Examiner s Report

Transcription

1 Chief Examiner s Report The purpose of the report is to provide feedback to centres and candidates on the candidates performance in the examination with recommendations about how any issues identified may be addressed. The target audience for this report are centre tutors and candidates. The report should be read in conjunction with the Suggested Answers for the examination. Unit Name: Level 6 - Unit 13 Law of Tort Exam Session: June 2016 CANDIDATE PERFORMANCE OVERALL 133 candidates sat the Law of Tort examination on this occasion. The overall pass rate was 44%, with 6 candidates achieving a merit, and 1 candidate receiving a distinction. Overall performance was down compared to last January s examination (49%) and especially the June 2015 examination (73% passed), though this exam had an exceptionally high success rate. As noted in the last Chief Examiner s Report, the high success rates seen in June 2015 had been a result of candidates adopting good examination technique and having revised sufficiently widely to ensure they had a choice when it came to question selection. It is inevitable that the commentary contained in a Chief Examiner s Report will tend to focus on what candidates did less well, in the hope that the feedback will be acted upon in future examination sessions. The details that follow should therefore be read in the overall context of a generally positive performance on the part of many candidates in the June 2016 paper. Centres and candidates are referred to the specific commentary (below) in relation to each question on the paper as well as the Suggested Answers. This should help tutors and candidates gauge the level of knowledge and understanding necessary to succeed in a formal written assessment which is designed at the level applicable to final year undergraduate candidates. For example, many candidates were unprepared to deal with essay questions focusing on specific aspects of negligence liability e.g. circumstances in which public bodies might owe a duty of care, or other specific elements of negligence liability such as remoteness of damage. Instead it was common to find candidates regurgitating revision notes covering all aspects of negligence liability (in particular, the circumstances in which a court might be prepared to recognise a duty of care) and which covered the examined areas only briefly. For the avoidance of doubt, in relation to the Law of Tort syllabus Learning Outcome 4, candidates can expect to see questions focusing on specific aspects of negligence liability such as breach of duty, causation in fact and remoteness of damage. In relation to duty of care, questions may focus on a single specific area where public policy plays a significant role in determining the existence of a duty e.g. pure economic loss, psychiatric harm, public body liability, omissions etc. Candidates who are unable to analyse specific aspects of negligence liability or specific duty of care situations in detail are unlikely to be able to pass questions designed to assess this very important area of the syllabus. There was also a widespread deficit in the methods necessary to successfully answer both essay and problem questions. Candidates answering problem questions often did not adopt the IRAC (or similar) technique, and individual claims were often not analysed separately with candidates attempting to discuss several claims simultaneously. It was very common to find candidates regurgitating a block of law at the start of their answers, including rules that were not relevant to the facts of the problem, followed by very brief and superficial application of the law to the facts. The use of supporting authority was often seen as entirely optional: it was not uncommon to find scripts almost entirely lacking in the use of case law. Page 1 of 9

2 Section A general points concerning essays The best essays were written by candidates who had clearly spent time planning their responses in order to address the specific focus of the question. These candidates were able to develop a running commentary enabling the reader to understand how each point made related to the essay title, thus enabling the candidate to provide a more explicit answer to the question. For example, candidates answering Question A4 were often able to demonstrate the relative ease with which claimants may establish the elements of the tort of defamation, thus indicating an emphasis on the protection of reputational interests. They were able to go on to describe how the defences to defamation, together with some of the wider reforms promoted by the Defamation Act 2013, have sought to strengthen freedom of speech. There were a significant number of candidates who insisted on reciting apparently prelearned passages, revision notes or sometimes complete essays, concerning the general elements of negligence liability in their essay responses, irrespective of the context (e.g. the approach for determining the existence of a duty of care in novel-fact accident situations running from Donoghue v Stevenson through to the current Caparo test, breach of duty, causation and remoteness of damage). Such passages were often encountered in Questions A1 and A2 as well as Question B4. It was not uncommon to find scripts almost entirely lacking in reference to case law. Section B general points concerning problem questions The best candidates displayed good technique when approaching the problem scenarios by splitting up their scripts logically so as to deal with the different possible claims under separate headings. However, a significant number of candidates failed to deal with each claim separately, attempting to discuss several potential claimants simultaneously (e.g. Miles and the swimmers in B1; Camilla and Wesley in B4). This often prevented them from identifying the specific issues affecting each possible legal action. Insufficient knowledge of the detailed elements required to establish liability in areas such as trespass to the person and nuisance meant that candidates were often unable to spot the main issues pertaining to each potential claim (Questions B2 and B3). Insufficient or inaccurate knowledge of the law effectively penalised candidates twice when answering a problem question: a rule not quoted (or correctly quoted) cannot be related to the facts of the scenario in order to predict legal liability. A significant number of candidates tended to provide a large block of law at the beginning of their answers (sometimes including irrelevant rules of law that did not arise for discussion according to the facts) before going back and applying these principles in relation to each claim. This approach tended to result in candidates running out of time and almost invariably caused the candidate to omit to apply one or more of the relevant legal tests the second time around. Many candidates needed to develop their problem-solving technique by adopting the IRAC approach (or similar). It was common to find candidates discussing the law and their conclusions as to liability without stating the reasons for these conclusions. CANDIDATE PERFORMANCE FOR EACH QUESTION: Question A1 (remoteness of damage) This question focused on a specific aspect of negligence liability i.e. remoteness of damage. The best candidates were able to explain the purpose of the rule and its development from the direct consequences approach in Re Polemis to the current approach in The Wagon Mound (No.1) utilising case facts by way of illustration. They were able to explain how the remoteness test is currently applied not only in personal injury cases but also in cases of property damage. The former usually requires that the type of damage suffered by the claimant was reasonably foreseeable. The latter usually requires that the risk giving rise to the damage, and the specific kind of damage suffered by the claimant was reasonably foreseeable. Stronger candidates also made reference to the thin-skull rule, its policy rationale, and there was an attempt to evaluate the remoteness rule as a whole. Page 2 of 9

3 The weaker candidates were often unable to go beyond the basic test to determine remoteness in negligence from The Wagon Mound (No.1) and even then, the rule was often not precisely or accurately stated. A large number of candidates discussed other aspects of negligence liability at length including the test to determine the existence of a duty of care in novel fact circumstances, negligently inflicted psychiatric harm and causation in fact. Question A2 (duties owed by public bodies in the tort of negligence and public policy) The question was divided into two parts. 2(a) required candidates to analyse the circumstances in which public bodies may owe a duty of care to individuals in the tort of negligence. 2(b) required an explanation as to why courts may be reluctant to find public bodies liable in the tort of negligence. Public body liability is one of the most challenging areas of negligence liability. No single test has been advanced to determine when a public body may owe a duty of care to the large class of individuals often potentially affected by its acts and omissions. Thus a number of approaches were possible in answering this question. Candidates most frequently considered different types of public body and their potential liability e.g. local authorities, the emergency services (e.g. the best scripts differentiating between the police, fire service, coastguard and ambulance service) and the NHS. Alternatively, or in addition, some candidates considered the different types of function fulfilled by public bodies, specific relationships they might enter into or specific responsibilities they may discharge e.g. duties assumed as employers, occupiers, health-care and education providers etc. As a range of valid responses were possible, this part of the question was marked flexibly. Candidates often referred to specific cases in which public body liability was either recognised or not recognised, usually by reference to the factual background of the claims. However, candidates often struggled to explain the underlying principles upon which liability was imposed or denied, thus providing a rather superficial analysis. A large number of candidates insisted on discussing the approach for determining the existence of a duty of care in novel-fact accident situations running from Donoghue v Stevenson through to the current Caparo test. This approach received little credit given the weight of decided cases that provide specific guidance in this area of liability. In discussing the potential liability of the emergency services, candidates often provided incorrect observations as to the circumstances in which the police, fire and ambulance service might be liable. It was frequently asserted that the police may be liable when a specific threat is made known to them concerning an identifiable individual. This ignores recent cases such as Smith v CC Sussex Police (2008) and Michael v CC South Wales Police (2015) which firmly establish that no such duty is owed by the police to individuals in the tort of negligence in these circumstances. Candidates may have been confusing the position under Art 2 ECHR where it can be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identifiable individual or individuals - Osman v UK (1998). However, discussion of the public law position was ruled out by the instruction in the question to consider liability in the tort of negligence. In response to part (b) candidates might have made reference to a wide range of policy factors that have tended to restrict liability in this area, many of which are referred to in the Suggested Answer to this part of the question. However, candidates tended to focus very narrowly on the possibility that recognition of a duty of care would open the floodgates of litigation (without recognising the related adverse consequences for the resourcing of public bodies, especially in times of austerity) or the argument that imposing widespread liability would encourage defensive/overly cautious practices. Question A3 (general defences) The question required candidates to evaluate whether the general defences of contributory negligence, consent and illegality achieve fairness between the parties. Page 3 of 9

4 The best candidates were able to discuss the detailed elements of each defence and to evaluate the extent to which each one achieves fairness between the parties. They observed that, as a partial defence which apportions liability according to the claimant s responsibility for the damage suffered, contributory negligence most obviously achieves this aim. Consent and illegality, on the other hand, extinguish the defendant s liability altogether despite clear evidence that s/he committed a tort. However, these defences are rarely successfully pleaded. Consent operates in extraordinary cases where the claimant willingly accepts risks without inducement or pressure. Illegality is a highly circumscribed defence which, primarily on public policy grounds, denies recovery where the claim arises from a serious illegal act and the injury suffered by the claimant was primarily caused by his/her crime rather than the defendant s tort. Many candidates, however, were unable to explain the detailed elements of one or more of the defences or to evaluate whether each one promotes fairness from the parties perspective. Evaluation required candidates to carefully distinguish between the different defences (rather than evaluating them all together), their effect (i.e. partial or complete) and their underlying objectives. Question A4 (defamation) This question was the least popular on the paper, but it attracted the highest overall average mark for the essays in relation to those candidates who attempted it. The best candidates explained and defined the common law tort of defamation, pointing out that the relative ease with which claimants may establish the elements of the tort appear to promote the protection of reputational interests. In particular, there is no requirement for the claimant to prove that the defendant s defamatory statement was untrue. The best candidates were able to go on to describe how the defences to defamation, together with some of the wider reforms promoted by the Defamation Act 2013, have sought to strengthen freedom of speech. Such discussion allowed candidates to reach a reasoned opinion as to whether the law of defamation strikes an appropriate balance between the protection of reputational interests and the freedom of speech. Weaker candidates tended to waste precious time considering the elements of defamation in excessive detail. The wider substantive and procedural reforms introduced by the Defamation Act 2013, which were designed to promote freedom of expression, were not always discussed. These included the need for proof of serious reputational harm to individuals/serious financial loss to trading organisations (s.1), the introduction of the single publication rule (s.8), measures to combat perceived libel tourism (s.9) and the removal of the presumption in favour of jury trial (not its abolition as some candidates asserted) - s.11. Whilst there was often some reference to the defences that aim to promote free speech, a discussion of the main features of these defences was often absent. Many candidates, though broadly aware of Defamation Act 2013, still referred to the former defences of justification, fair comment and the Reynolds defence. These defences have now been abolished and replaced with the defences of truth (s.2 DA 2913), honest opinion (s.3) and publication on a matter of public interest (s.4) respectively. Question B1 (occupiers liability) This was the most popular question on the paper and it attracted the highest average score. The best candidates split up their scripts into separate sections, using separate headings to consider the claims that might be brought against Wessex County Council (WCC) by (a) Ahmed (b) Miles and (c) the swimmers. They integrated their discussion of the law with its application to the facts of each claim, rather than providing a long discussion of the law at the start of the question, followed by an attempt to apply the law to each claimant. Having identified WCC as the occupier of the relevant premises according to the control test in Wheat v Lacon (1966), stronger candidates noted that whilst the climbing bars themselves were the relevant premises for the purposes of the claim (a fixed/moveable structure), there was nothing to suggest that the bars were defective i.e. Ahmed had apparently suffered damage due to his own voluntary risky activity and not by reason of a danger due to the state of the premises e.g. Tomlinson v Congleton BC (2003) and Page 4 of 9

5 Poppleton v Trustees of the Portsmouth Youth Activities Committee (2006). As such, WCC would probably not be liable to Ahmed under either Occupiers Liability Act. Notwithstanding this issue, candidates were given full credit for arguing that Ahmed might have been owed a duty as a trespasser under s.1(3) OLA 1984 having gone to an area of the occupier s premises he was not permitted to go to, or because he went beyond his permitted purpose. Alternatively, candidates might have argued that Ahmed remained a visitor in the sports hall having exceeded his permitted purpose due to an allurement i.e. the climbing bars (e.g. Jolley v Sutton LBC (2000)) and was thus owed a duty under s.2(2) OLA Candidates were also given credit for considering whether the notice on the door might discharge the occupier s duty under s.2(4)(a) OLA 1957 (or s.1(5) OLA 1984) as a sufficient warning, noting that any duty owed by the council was unlikely to extend to warning persons about obvious dangers (Tomlinson). The weaker candidates often confused elements of the 1957 and 1984 Acts in their discussion, most probably because they were unsure as to Ahmed s legal status as either visitor or non-visitor in the sports hall. The ideal approach here would have been to deal with each of these possibilities in turn. In discussing whether WCC were in breach of any duty of care owed to Ahmed, many candidates referred inappropriately to cases which determine the standard of care owed by child defendants (e.g. Mullin v Richards (1998)) rather than those that determine the standard of care owed to child claimants. Candidates often referred inappropriately to Phipps v Rochester Corp (1955) in arguing that the standard of care owed by WCC to Ahmed should take account of parental accompaniment/responsibility, overlooking the fact that Ahmed was not a very young child and that WCC were apparently prepared to admit him to the swimming pool alone. A very large number of candidates described non-visitors (who fall under the 1984 Act) incorrectly as unlawful visitors. Centres should take care to ensure the technically accurate terminology is adopted. In addition, candidates should note that it is technically incorrect to refer to a child allured onto premises by some attraction as being upgraded from a nonvisitor to a visitor. The post 1984 case law has tended to recognise the allurement principle as being applicable to child visitors who go beyond their permitted purpose due to some attraction on the occupier s premises. Thus if the allurement principle applies at all it is likely to preserve the child s status as a visitor and not to upgrade it. In relation to Miles s claim against WCC, most candidates correctly analysed Miles as being a visitor to the swimming pool as a contractor undertaking work for the council. Miles was thus owed a duty under s.2(2) OLA A surprising number of candidates failed to spot that Miles may have been injured by a special risk ordinarily incident to his job. He was apparently injured by a chemical reaction that he ought to have anticipated given that he was working in a damp environment. As such, WCC may not have been in breach of the lower standard of care applicable under s.2(3)(a) OLA A large number of candidates incorrectly discussed the provisions of s.2(4)(b) OLA 1957 as being relevant to injuries inflicted by a contractor upon himself, when this was a specific point likely to have been raised by the council in defending any actions for personal injury brought against it by the swimmers under the 1957 Act (discharge of the occupier s duty by hiring a competent contractor). Weaker candidates often did not make reference to the case law that helps to interpret provisions of the Occupiers Liability Acts. Candidates are also reminded of the differing effect of notices and signs. On its true construction, a sign stating that children under 16 should not enter unless accompanied by an adult appears to be an attempt to limit the permission of under-16s to enter a specific part of the occupier s premises. It is neither an exemption of liability (e.g. the occupier accepts no liability etc) nor does it appear to be a warning of a danger i.e. an attempt to discharge the occupier s duty for the purposes of assessing breach. Many candidates inappropriately cited s.2(1) Unfair Contract Terms Act 1977 assuming the sign to be an exemption of liability. Finally, the majority of candidates were unable to accurately pinpoint statutory provisions. It Page 5 of 9

6 was common, for example, to find s.2(3)(a) OLA 1957 (an occupier must be prepared for children to be less careful than adults) being referred to as s.3(a). Similar mistakes were made with other key provisions of both pieces of legislation. Accurate statutory pinpointing is an important basic skill for lawyers and Centres should take care to ensure their candidates are given appropriate skills tuition in order to eliminate this sort of error. Question B2 (trespass and Wilkinson v Downton) Less than 50% of candidates attempted this question. A number of candidates were able to provide full, accurate definitions of the relevant torts together with discussion of their detailed elements, as well as those of relevant defences. They were able to split up their discussion of (a) Vernon s liability and (b) Tom s liability into relevant separate legal claims. They were able to integrate their discussion of the law with its application to the facts of each claim, rather than providing a long discussion of the law at the start of the question, followed by a retrospective attempt to apply the law to each defendant s circumstances. As with all problem questions, a thorough knowledge of the law is a pre-requisite for analysing the facts so as to determine the legal issues arising for discussion. Weaker candidates who did not have the requisite legal knowledge were unable to spot many of the issues this question was designed to examine. Inaccurate or incomplete knowledge of the law prevented further application of the legal principles to the facts. In part (a) many candidates were unable to accurately state the extent of a person s right to possess airspace above land according to cases such as Bernstein v Skyviews & General Ltd (1977) (rights of owners in the airspace above land is limited to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it). Many candidates merely asserted that possessory rights include the airspace above land without making any qualification as to the extent. Few candidates were aware of the precise elements for liability in the tort in Wilkinson v Downton, and very few were aware of the recent clarification to this area of the law provided by the Supreme Court in OPO v Rhodes (2015). There were frequent assertions that trespass-related torts were ones of strict liability (rather than torts based upon the intentional conduct of the defendant). Candidates appear to have confused the fact that trespass-related torts are actionable per se (i.e. without proof of damage), but this does not make them strict liability torts. Candidates who suggested that Vernon may face liability for trespass to goods under Torts (Interference with Goods) Act 1977 on the basis of his use of Tom s mobile phone were given full credit for this analysis. In discussing trespass to land in part (b) most candidates were aware of the implied licence to enter a person s premises in order to address the occupier at his/her front door for an innocent purpose (though candidates were often unable to cite authority for the proposition e.g. Robson v Hallett (1967)). They were able to explain that Tom either became a trespasser by remaining on the premises beyond a reasonable period of time following Vernon s request to leave (Robson), or presumably upon Tom s express refusal to leave. Many candidates were unaware that contributory negligence is no defence to intentional torts such assault or battery: Co-Operative Group v Pritchard (2011). Question B3 (nuisance) This question was spilt into two parts. Part (a) required candidates to analyse any claims or liability Barry may have in nuisance. Part (b) required candidates to consider the remedies available to Barry if successful. This was the least popular problem question with only around one third of candidates attempting it. The average score was, however, very slightly lower than that for Question B1 on occupiers liability i.e. the second highest for the paper. In part (a), the best candidates split up their scripts, using separate headings to consider the claims that might be brought both by and against Barry. Discussion of the law was Page 6 of 9

7 integrated with its application to the facts of each claim (using the IRAC approach or similar), rather than candidates providing a long discussion of the law at the start of the question, followed by an attempt to apply the law to each claim. The strongest candidates considered claims that Barry might have against the charity, both in public and private nuisance, as a result of the children (the charity s licencees) causing noise disturbance and depositing rubbish in Barry s garden. It was unclear whether Barry had suffered special damage over and above the annoyance and inconvenience suffered by other neighbours, and hence a claim in public nuisance was uncertain. Most candidates appeared to be unaware that the charity, as occupier of land, might be liable in private nuisance for the activities of the children (their licencees) even if the acts took place away from their land e.g. Lippiatt v South Gloucestershire Council (1999). Thus many candidates lost marks in failing to consider a claim in private nuisance against the charity. Again, stronger candidates considered whether the council had authorised the charity s potential private nuisance by letting the premises to the charity in the first place, and thus whether they may also face liability. Few candidates appeared to be aware of the current test to determine authorisation as articulated by the Supreme Court in Coventry v Lawrence (No.2) (2014). As the question confined itself to liability in nuisance, candidates could not be credited for discussing whether the youths might be liable for trespass to land by projecting items (i.e. rubbish) into Barry s garden. Nor did these facts give rise to a claim in Rylands v Fletcher which is only likely to apply to the escape of accumulations (by human intervention) of ultra-hazardous material from the defendant s land. Few candidates appeared to be aware that activities necessary for the ordinary use and enjoyment of houses and residential land will not amount to a private nuisance if carried out with proper consideration for the interests of neighbouring occupiers e.g. Southwark LBC v Mills and Baxter v Camden LBC (1999). This meant that the noise created by most of the everyday activities carried out by Sylvia and her children would not have been actionable in private nuisance. Centres and candidates should note that statutory nuisance is not on the CILEx syllabus for Level 6 Law of Tort. Part (b) was often very briefly answered by candidates. The best responses noted that Barry was most likely to seek a prohibitory injunction against the charity so as to restrict (rather than completely prohibit) its nuisance-making activities. It was noted that the strong public benefit of the charity s activities might instead result in an award of damages rather than an injunction (e.g. Dennis v MOD (2003); Coventry v Lawrence (No.1) 1914). The conditions for obtaining an interim injunction were rarely discussed. Most candidates discussed Barry s entitlement to damages as of right against the charity, but few were able to explain the basis upon which damages might be awarded. This included a possible claim for diminution in value of Barry s house (assuming it had not already been discounted upon purchase to reflect the charity s presence) and an award for loss of the amenity value of the land. A number of candidates discussed the self-help remedy of abatement though this would have been inapplicable according to the facts of the scenario. Question B4 (employer s liability) This question was the second most popular on the paper. On the whole, however, it was not well answered. It mainly concerned various aspects of the personal and non-delegable duty of care owed by employers to their employees i.e. employer s primary liability rather than secondary (vicarious) liability. As with the other problem questions on this paper, the best candidates split up their scripts using separate headings to consider the claims that might have been brought against Nina by (a) Wesley (b) Camilla (c) Danni and (d) Emma. The strongest candidates integrated their discussion of the law with its application to the facts of each claim, rather than Page 7 of 9

8 providing a long discussion of the law at the start of the question, followed by an attempt to apply the law to each claimant. Most candidates were able to provide a general explanation of employers duties to take reasonable care so as not to expose their employees to unnecessary risk. This includes an obligation to provide competent staff, adequate materials, a safe system of work (Wilson & Clyde Coal Co v English (1937)) and a safe place of work. Even though most candidates noted that this is a personal and non-delegable duty (e.g. McDermid v Nash Dredging and Reclamation Co (1987)) few candidates appreciated that the consequence was that Nina could not discharge her responsibility by delegating performance of the duty to Zac, even if she reasonably believed him to be competent to perform the role. In addition, very few candidates were aware of the specific case law illustrating the various aspects of the employer s duty (as outlined above). Such knowledge would have been needed to achieve very high marks for the question. By way of example, few candidates were aware of case law establishing that a safe system of work may extend to preventing employees from undertaking a lengthy drive home after a long shift without a proper break (e.g. Eyres v Atkinson Kitchens and Bathrooms (2007) re Danni) or that an employer s duty to provide a safe workplace may, in certain circumstances, extend to third party premises (Emma). Camilla s claim also raised the additional issue of causation given that there were multiple possible sources of her nasal cancer (negligent exposure to dust during two separate periods of employment). If, on the balance of probabilities, the trigger was likely to have occurred during Nina's employment, taking into account the level and duration of exposure to dust throughout each period of employment, Nina would have been fully liable for the cancer on the basis of the conventional 'but for' test. However, if the but for test could not be established, a court may have been prepared to make Nina liable on proof that her breach materially increased the risk of Camillia s injury - Fairchild v Glenhaven Funeral Services (2003). In other words, there may have been exceptional policy grounds for relaxing the 'but for' test to prevent Nina from evading liability for a serious breach of duty which would otherwise result in Camilla going uncompensated. Few candidates appreciated that if the Fairchild test were to be applied, liability would have been apportioned according to the relative chance the cancer had been triggered during Camilla's employment with Nina, rather than her previous employment (Barker v Corus (2006)). Many candidates failed to appreciate that s.3 Compensation Act 2006 only operates to re-establish joint and several liability between employers in cases of mesothelioma caused by exposure to asbestos. Often, candidates made reference to the Fairchild case, asserting that this meant that Nina would face joint and several liability with Camilla s former employer, without identifying that the facts gave rise to the issue of factual causation and without citing the material increase in risk test as a foundation for their reasoning and conclusions. In analysing Wesley s claim for the dermatitis he suffered, many candidates made an erroneous factual link with the case of McGhee v NCB (1973) (dermatitis being the type of harm suffered by the claimant in that case) and incorrectly applied the material increase in risk test to the facts. However, in Wesley s case there was nothing to suggest any cause of injury other than Nina s failure to implement a safe system of work, and the conventional but for test was therefore applicable. Wesley s failure to take reasonable care for his own safety gave rise to an issue concerning contributory negligence. On this latter point, some candidates asserted that employees are rarely found to be contributory negligent perhaps confusing the point with the defence of volenti non fit injuria where, due to financial pressures, employees are rarely found to have freely consented to risks associated with their work. In fact employees are frequently found to be contributorily negligent in relation to accidents at work, though the courts do take into account the working environment (e.g. repetitive tasks dulling the claimant s receptiveness to danger) in deciding whether the worker failed to take reasonable care for his/her own safety - Caswell v Powell Duffryn Associated Collieries Ltd (1939). Many candidates argued that Nina might be vicariously liable for Zac s various failings in the provision of supervision and support for those suffering injury. Whilst these suggestions were credited, candidates almost universally failed to consider whether Zac himself had been negligent. Suggestions that Nina might be in breach of duty for failing to provide competent staff were also credited though it is to be noted that Zac was described as a relatively recent recruit who was experienced and well qualified. Page 8 of 9

9 Finally, many candidates failed to read the facts of the problem itself, or the rubric carefully enough. The facts made it clear that those affected by the recent incidents were Nina s employees, and this point was repeated in the rubric. Thus the issue of the relationship between Nina and the various claimants had been removed from the discussion and candidates did not need to waste time considering whether the various tests indicating the presence of an employment relationship were made out. Additionally, candidates did not need to consider the liability of the occupier of the house in which Emma was working at the time of her accident given the instructions contained in the rubric to consider Nina s liability in negligence. These instructions also ruled out discussion of liability that may have arisen under UK and EU legislation most of which, in any event, are not on the syllabus. Reference to the Employer s Liability (Defective Equipment) Act 1969 in Wesley s case was also irrelevant as the failure of the dust extraction facility was not expressed in the question to relate to any third party fault, such as an inherent manufacturing defect. Page 9 of 9