Outline of assessment Law of Tort (Paper 22, Unit 22) Syllabus - for the June and October 2009 Examinations Time allowed: 3 hours. Each question carries a total of 25 marks. The examination paper is divided into two sections. Section A contains four problem questions and Section B contains four essay type questions. Candidates must answer four questions with at least one question from Section A and at least one question from Section B being attempted. Aims and Learning Outcomes A To understand the nature of liability in tort and defences B To know and understand the elements of liability in tort C To analyse a factual situation in terms of relevant tort concepts
On completion of this unit candidates will be able to: Demonstrate a knowledge of the torts covered in the syllabus and defences Apply the rules and principles of liability in tort Analyse factual situations using the law of tort Outline Content of Syllabus 1. General Principles of Tortious Liability Elements of a tort: Act plus causation plus fault plus protected interest plus damage equals liability. The mental element in tort intention, negligence and breach of strict duty. 2. The Meaning and Function of Law of Tort Interests which the law protects: Personal security. Interest in property. Economic interests. No fault accident compensation schemes. Role of public and private insurance. Individual deterrence. General deterrence. Theoretical arguments 3. Trespass to the Person Defendant's state of mind. Assault, battery, false imprisonment, Rule in Wilkinson v Downton. Consent, lawful arrest. Self defence Guidance Notes This unit provides an introduction to the course. The content is pervasive in nature and candidates will show understanding of the key areas throughout the course. To include the common law as the chief source of law together with the importance of procedure. Forms of liability to include liability as a consequence of an act or omission; the mental element required by the fault principle and situations when there can be liability without fault; damnum sine injuria and injuria sine damno. Motive and malice to include ratio of House of Lords in Bradford Corporation v Pickles 1895. Role of policy in limiting liability. Candidates will know the two main objectives of compensation and deterrence. To be aware of the use of an injunction in preventing a tort, and the theoretical arguments as to whether the law can fulfill a deterrent role. To be aware of the limited role of punishment and of the vindication of the Claimant by public acknowledgement of the defendant's wrong. To be aware of the relationship between tort and other areas of law such as contract, criminal law and public law. To be aware of the relationship between tort and other compensation systems such as public and private insurance. To be aware of continuing debate in this area. To know how the objectives and functions of the law of tort can be achieved through the system of legal remedies especially through the award of damages. To know by reference to examples, the type of interest which the law protects. Note the potential impact of the Human Rights Act 1998. The Act provides that whenever possible primary and subordinate legislation must be interpreted in a way compatible with Convention rights and also that it is unlawful for any public authority to act in a way which is incompatible with a Convention right. Candidates will know the elements of the tort and be able to show why the Rule in Wilkinson v Downton is not trespass. Candidates to be aware of: judicial and academic debate on, inter alia: whether hostility is a necessary element of battery; whether a person can be falsely imprisoned without his knowledge; whether an omission to release a person constitutes false imprisonment; what is meant by informed consent and whether English law recognises such a doctrine. To know the Protection from Harassment Act 1997. 2
4. Negligence a Duty. Historical development of duty up to and including the present position. Analysis of concepts of foreseeability and proximity:how such concepts are used by the courts the role of policy. Historical development of nervous shock and position at present day. Comparison of physical harm and nervous shock. Economic loss caused by negligent statements compared with economic loss as a result of careless acts b Breach. The reasonable man test. Factors determining negligence. Proof of negligence Candidates will analyse the neighbour principle and seminal cases from Donoghue v Stevenson to the present day. To include the expansion of negligence liability and the retraction of negligence and the four requirements for the existence of a duty of care at the present day. To know the distinction between acts and omissions; liability for gratuitous undertakings; liability where there is a pre existing relationship between claimant and defendant; and liability for acts of third parties. To know about the relationship between affirmative duties for controllers of dangerous things and the concept of novus actus interveniens. To be aware of the type of claimant, eg. rescuer or participant in crime, and the effect on liability to claim. To be aware of the different types of loss: for example, pure economic loss as a result of statements and as a result of careless acts; physical harm and nervous shock. To know the definition of primary and secondary victims and the court s attitude to employees who suffer psychiatric harm as a result of their employer s carelessness. Candidates to be aware of the continuing trend to restrict liability particularly for public bodies eg X v Bedfordshire County Council and Stovin v Wise. Candidates also to be aware of cases which appear to reverse this trend eg White v Jones and Spring v Guardian Assurance plc. Candidates will understand the principles applied to the police, in particular in the cases of Hill v Chief Constable of West Yorkshire and Osman v UK 1998. Candidates will know the definition of breach by reference to the reasonable man, and the objective standard: that there is no liability for unforeseeable harm. Candidates to know the factors to be weighed in establishing breach: eg. magnitude of harm; defendant s purpose; practicability of precautions; general practice; special standards appropriate to professionals; and the standard applied in sporting situations and to children. Candidates to be aware of the importance of evidence in establishing proof of breach, and to know when the maxim res ipsa loquitur applies, and its effect. c Causation and remoteness of damage. Factual causation The 'but for' test; degree of probability of damage. Negligent omissions. More than one cause. Direct consequence test. Reasonable foreseeability test. Kind of damage. Claimant's impecuniosity. Novus actus interveniens Candidates will be able to explain how the claimant must prove that his damage was caused by the defendant s breach of duty and that the damage was not too remote. Candidates to know the but for test; proof of causation and loss of a chance. Candidates to be aware of cases where the but-for test is inadequate eg. where the breach of duty consists of an omission to act, where the claimant s damage is the result of more than one cause to include analysis of cases on multiple causes and multiple successive causes, and where the claimant s loss is economic. To include the leading cases on remoteness of damage exemplifying principles which have emerged on remoteness of damage: manner of occurrence; type and extent of harm; eggshell skull; and the relevance of the claimant s impecuniosity. Candidates to know the relevance of policy in the area of novus actus interveniens. 3
5. Breach of Statutory Duties Whether the statute gives rise to an action for damages. Diplock tests. Whether the duty was owed to the claimant. Causation defences. Breach of statutory duty and negligence 6 Employer s Liability Employer s personal duty of care. Competent staff. Plant, appliances and premises. Safe system of work. Defences 7. Liability for Land and Premises Liability to visitors Occupiers, Liability Act 1957; liability to nonvisitors Occupiers, Liability Act 1984; Countryside and Rights of Way Act 2000 and common law; Unfair Contract Terms Act 1977. Liability of vendors and lessors; Defective Premises Act 1972 8. Liability for Goods Narrow rule in Donoghue v Stevenson. Consumer Protection Act 1987 9. Liability for Statements Economic loss caused by negligent misstatement. Deceit. Injurious falsehood 10. Trespass to Land Trespass by wrongful entry. Trespass by remaining on land. Trespass by placing objects on land. Possession. Defences. Remedies Candidates will be aware of the importance of discovering Parliament s intention. To know whether the breach is actionable and what is the appropriate statutory and common law remedy. Candidates to know Lord Diplock s exceptions to the general rule laid down by Lord Tenterden; benefit of a class and what constitutes a class; public rights and particular damage and public utilities. To be aware of statutory negligence and the scope of the defendant s statutory duty, causation and defences. Candidates will be aware of sources of law statute law and common law. To be aware of the importance of EC Directives in this context. Candidates to know the nature of the employer's duty: competent staff; adequate plant and equipment; safe place of work and safe system of working. To know the scope of duty and to be aware of defences. Candidates will know in detail the Act governing liability to visitors. They will be able to define and identify: the common duty of care; occupiers; visitors; children; common calling; warnings and independent contractors. Candidates will know when an occupier is liable to trespassers at common law and when liability arises under Occupiers, Liability Act 1984 and the scope of that duty. Candidates to know how the Unfair Contract Terms Act 1977 restricts the ability to exclude liability. Candidates to know the common law and statutory liability of non-occupiers. Candidates will be able to explain the narrow rule in Donoghue v Stevenson. Candidates to be aware of the key sections of the Consumer Protection Act 1987. Candidates to be aware that the Act was introduced in response to a European Community Directive. Candidates to be aware of the finding of the Commission of the European Community in relation to the s4(1)(e) defence. Candidates will know the principles contained in Hedley Byrne v Heller and know case law preceding and following this landmark. Candidates to be aware of how liability under Hedley Byrne differs from liability for careless acts, i.e. instead of the neighbour test the claimant has to show a special relationship. Candidates will be aware of the essentials of torts of deceit and injurious falsehood. Candidates will know the definition of trespass to land. They will know in what ways trespass to land can be committed. Candidates to know what constitutes possession of land and continuing trespass. Candidates to know when intrusions into airspace will be actionable trespass. Candidates to know whether mistaken or negligent entry is actionable. Know defences and remedies. 4
11. Nuisance Public nuisance. Private nuisance. Basic differences between public and private nuisance. Standard of liability in private nuisance. Who can sue. Who can be sued. Defences. Remedies 12 Rylands v Fletcher a The Rule in Rylands v Fletcher strict liability. Defences. Remoteness of damage. b Liability for fire At common law and under statute. c Liability for animals Animals Act 1971 Dangerous species; non dangerous species; Defences; trespassing livestock; detention and sale of trespassing livestock; liability for dogs; animals straying on to the highway 13. Interference with Goods Trespass to goods. Conversion. Finders. Jus tertii 14. Defamation Distinction between libel and slander. Essentials of defamation: Words must be defamatory; Reference to claimant; Publication. Defences. Reform of defamation law. Defamation Act 1996 This unit will include the special or particular damage necessary for an action for damages for public nuisance. Private nuisance to know the concept of reasonableness: to include the extent of harm and the nature of the locality; utility of defendant's conduct; abnormal sensitivity; limits to protection; temporary injury and malice. To include an analysis of Cambridge Water Co. v Eastern Counties Leather plc. To include: The creator of the nuisance and the occupier. Where the nuisance originated: with someone else lawfully on the premises; with a trespasser or as an act of God; with someone from whom the occupier acquired the property. To include the defences of: coming to the nuisance (no defence); usefulness not in itself a defence: no defence that it is due to many; twenty years prescription, jus tertii, statute. Candidates to be aware of the importance of the review of this tort by the House of Lords in Hunter v Canary Wharf. Candidates to know that although Privacy, as such, is not protected by the English Law of Tort Wainwright v Home Office 2003 the reshaping of the action for breach of confidence is a key development in this area. Rylands v Fletcher To include background to the Rylands v Fletcher principle and detailed knowledge of the position at the present day including Cambridge Water Co. v Eastern Counties Leather plc 1994. To include defences of consent; common benefit; act of a stranger; statutory authority; act of God and default of claimant. To include the concept of foreseeability in relation to the Rule. Fire relevance of negligence and the Rule in Rylands v Fletcher in the context of liability for fire. Animals To know that damage caused by animals can arise both at common law and under statute. To be aware of the changes made to the common law by the Animals Act 1971. To include the importance of possession; the various ways in which conversion may be committed; the concept of de facto possession and when an occupier has good title against a finder. To include the operation of jus tertii. To include the statutory basis for this area of law provided by the Torts (Interference with Goods) Act 1977. Candidates will be able to explain what has to be proved by the claimant. To know the definition of defamation; the function of judge and jury; mere abuse; innuendo. To be aware of defamation of a class and unintentional defamation. To be aware of communication between husband and wife; publication by distributors; the situation where the claimant assents to publication. To be aware of the defences of truth, fair comment and qualified privilege and be aware of the defence of absolute privilege. To include the concept of malice. To be aware of criticism of defamation law and changes made by Defamation Act 1996. Candidates to be aware of the case of Reynolds v Times Newspapers on qualified privilege and the statutory developments. 5
15. Vicarious Liability Vicarious liability and primary liability. Historical outline of master/servant relationship is a worker a servant or independent contractor. Was the tort committed during the course of employment. Employer and independent contractor. Theoretical basis of vicarious liability 16. Joint and Several Tortfeasors Joint and several tort feasors distinction between the two. Contribution between tortfeasors and Civil Liability (Contribution) Act 1978 17. Defences General defences of volenti, contributory negligence, ex turpi causa, act of God and statutory authority. Defences available only for certain torts mistake, inevitable accident, self defence and necessity 18. Limitation of Actions Limitation Act 1980. Accrual of causes of action. Limitation periods. Legal disability, fraud and concealment 19. Remedies Damages recoverable once only. Kinds of damages. Measures of damages. Actions for personal injury heads of damage: nonpecuniary loss. Loss of or damage to property. Other remedies: self help Injunction 20. Death Law Reform (Miscellaneous Provisions) Act 1934. Fatal Accidents Act 1934 Candidates to know the definition of vicarious liability and be able to distinguish it from primary liability. To know the prerequisites for such liability commission of tort; by an employee; during the course of employment. To include the tests used to determine whether a worker is an employee or independent contractor. To know when an employer s prohibition restricts the course of employment and when an employee is on a frolic of his own. To be able to identify situations in which an employer remains personally liable for torts committed by an independent contractor. To be aware of the arguments used to justify the imposition of vicarious liability on an employer. Candidates to be able to distinguish joint and several liability. To include the rules applicable to contribution between tortfeasors under the Civil Liability (Contribution) Act 1978. Defences to be covered in the context of the specific torts. Candidates will be expected to be aware of the general defences of volenti, contributory negligence, ex turpi causa. Defences applicable to particular torts will also be known. Candidates will know the effects of expiry of the relevant limitation periods, the primary limitation period in the law of torts, and torts to which a 3-year limitation period applies. Candidates will know the effect of s33 Limitation Act 1980 and how the running of time is affected by the claimant s legal disability and by fraud or concealment of the defendant. Candidates will know the different kinds of damages and measure of damages. They will know the heads of damage in actions for personal injury pecuniary and non-pecuniary loss and future loss of earnings. They will understand the difference between damages for the injury itself and damages in consequence of the injury. They will understand what is meant by loss of amenity and pain suffering. They will understand the basic assessment of damages, to include lump sum and periodic payments and structured settlements, loss of earnings, loss of earning capacity, loss of expectation of life, deduction of benefits, expenses and interest on damages. Candidates will be aware of the Damages Act 1996. Candidates will be aware of the principal of restitution applicable to loss of or damage to property and remedies of injunction and self-help. Candidates will know how death affects liability in tort survival of causes of action under the Law Reform (Miscellaneous Provisions) Act 1934 plus time limitation and creation of liability under the Fatal Accidents Act 1976 for the benefit of dependants of deceased persons. 6
Recommended Textbook: Winfield and Jolowicz on Tort, (17th edition, revised 2006) published by Sweet and Maxwell. Recommended Casebook: Casebook on Torts, by Richard Kidner, (9 th Press. edition, 2008) published by Oxford University