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: January 2017 CANDIDATE PERFORMANCE OVERALL 101 candidates sat the Law of Tort examination on this occasion. Overall performance was improved compared to last year s exams whilst being significantly lower than the June 2015 examination, though this exam had an exceptionally high success rate. As previously noted, the high success rates seen in June 2015 had been a result of candidates adopting good examination technique, but more particularly the candidates in that exam had revised sufficiently to answer the questions in greater detail and analytical depth. Many candidates in June 2015 were therefore, able to avoid questions that might have been perceived to be more difficult 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 January 2017 paper. It was very pleasing to see a small, though significant rise in the pass rate on this occasion. There was a very strong preference for answering the problem questions in this exam in an approximate ratio of 3:1 problems/essays. Undoubtedly, the essay questions were perceived as being more difficult. Essay questions at Level 6 are designed to enable candidates to pass with knowledge of the law in the area concerned, but they must also contain an evaluative element to allow candidates to demonstrate Level 6 attainment, and to differentiate stronger candidates. Thus questions tend to focus on a specific area of the syllabus and/or require discussion of current problems/developments in tort law. It seems likely that this specificity and the need for interpretation of some of the essays put many students off answering them at this sitting. 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 students. For example, many candidates were unprepared to deal with essay questions focusing on specific aspects of negligence liability e.g. pure economic loss, or the duty owed by medical practitioners to disclose proposed treatment risks. Instead it was common to find candidates regurgitating learned 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 in novel fact situations) and which covered the examined areas only briefly and at a wholly superficial level. 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 Page 1 of 9
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. Candidates answering problem questions often did not adopt the IRAC (or similar) technique, and individual claims were sometimes 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 sometimes seen as entirely optional: it was not uncommon to find scripts almost entirely devoid (or in some cases entirely lacking in the use) of case law. As with the January/June 2016 and June 2015 exams, one of the most pleasing aspects of the responses to this paper was that the vast majority of candidates maximised their potential by adopting good examination technique in answering four questions and by allocating equal time to each question. Very few students failed to answer four questions and comparatively few wrote only a brief final answer. However, in contrast to the June 2015 exam, many candidates had not revised sufficiently widely to avoid questions that might have been perceived as being more difficult. In addition, many candidates did not have adequate knowledge to answer many of the questions in sufficient detail or analytical depth. Poor technique in planning and responding to problem questions was also widespread. 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 candidates to provide a more explicit answer to the question. For example, the best answers to Question A3 were able to demonstrate how the rules of negligence have been framed to either prevent or heavily restrict the circumstances in which a duty of care in negligence may extend to protecting defendants from suffering pure economic loss. The policy reasons for restricting the duty of care were explored separately for both relational and defective product economic loss as well as for negligent misstatement and liability under the 'extended' Hedley Byrne principle. Thus candidates were able to demonstrate why restrictions are appropriate and how indeterminate liability is avoided. 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, A2(b), A3 as well as Questions B3 and B4. The use of supporting authority was often seen as entirely optional: it was not uncommon to find scripts almost entirely lacking in reference to case law. As with previous examinations in this subject, very few students were able to develop critical commentary on the law in key areas. The knowledge and skills required to develop and demonstrate critical evaluation are essential at level 6, and centres generally need to do more to encourage their candidates to think critically about the law, its policy objectives and whether particular torts adequately protect the interests they are designed to safeguard. 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 Page 2 of 9
separate headings. However, a significant number of candidates failed to deal with each claim separately, attempting to discuss several potential claimants simultaneously (e.g. Rosie, Theo, Victoria and Wayne in B4). This often prevented them from identifying the specific issues affecting each possible action. Insufficient knowledge of the detailed elements required to establish liability in areas such as vicarious liability and negligently inflicted psychiatric harm meant that candidates were often unable to spot the main issues pertaining to each potential claim (Questions B2 and 4). 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. This was a particular problem in the responses seen for Questions B2-4. 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 which 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 (it is not a word-efficient technique) 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 (the assessment of compensatory damages for those suffering permanent unconsciousness) Only a handful of candidates attempted this question. Those who did were often able to articulate the general aim of an award of compensatory damages and to provide a general explanation as to the method of calculation of compensation under separate 'heads' of special and general damages. Better candidates selected and adapted their knowledge to address the specific focus of the question by omitting heads of damages (e.g. Smith v Manchester Corp damages) that would not be relevant to a claimant suffering permanent unconsciousness. They also mentioned the effect of permanent unconsciousness on the awards for 'pain and suffering' and 'loss of amenity'. Very few candidates were able to provide a meaningful critique in relation to the rules they discussed, and overall, there was very little reference to supporting case law or statute. Weaker candidates discussed material that was not relevant to the question, such as the general elements of the tort of negligence and non-compensatory damages. Question A2 (liability of medical practitioners upon failing to fully disclose proposed treatment risks) This was the second most popular essay response, but the lowest average scoring question on the paper. The question was divided into two parts. 2(a) required candidates to critically analyse the circumstances in which a medical practitioner may be liable to a patient for failing to fully disclose proposed treatment risks in the tort of battery. 2(b) required similar commentary in relation to the tort of negligence. In 2(a) most candidates were able to define battery and to state its elements including the requirement for a lack of lawful justification. The majority of candidates were able to explain that the patient's valid consent, or the possibility of providing non-consensual treatment in circumstances of necessity were two possible scenarios providing such a lawful excuse. Substantial credit was awarded for this discussion. However, very few candidates were able to directly answer the question by explaining the level of prior information required to be disclosed for a medical practitioner to obtain 'real' consent from a patient i.e. disclosure in broad terms as to the general nature of the procedure (Chatterton v Gerson (1981)). Page 3 of 9
In 2(b) most candidates provided an explanation of the general elements of negligence liability without appreciating that the requirement for full disclosure chiefly relates to the issue of breach of duty (it being well established that medical practitioners owe their patients a duty of care). In covering breach of duty, most candidates discussed the Bolam/Bolitho test without appreciating that this approach no longer applies in patient advice cases. In this respect the Supreme Court decision in Montgomery v Lanarkshire Health Board (2015) confirms a major departure from the previous position in Sidaway v Bethlem Royal Hospital Governors (1985). Montomery was specifically included as an addition to the 'negligence' section of the Law of Tort syllabus for 2016/17. Whilse a number of candidates were able to trace the development of the law in relation to patient advice cases from Sidaway through to the current position, with some reference to Commonwealth cases such as Rogers v Whitaker (1992), very few were able to state the full ratio from Montgomery or its underlying policy rationale, and there was very little attempt at critical analysis. Furthermore, candidates were largely unable to explain the reason for the different approaches adopted in battery and negligence cases. Candidates who explored possible problems in establishing factual causation and the application of the 'but for' test in cases where full advice would have led the patient to seek a second opinion (e.g. Chester v Afshar (2004)) were fully credited for this discussion. Whilst Montgomery did not finally determine the point, it seems inevitable that the 'but for' test will be modified (in accordance with the approach adopted in Chester) in future cases so as not to negate the duty to provide full disclosure as to the risks associated with proposed and reasonable alternative treatments. Question A3 (pure economic loss) The question required candidates to critically examine whether the rules restricting recovery for pure economic loss in the tort of negligence appropriately prevent indeterminate liability. Most, though not all candidates were able to define pure economic loss and to explain that indeterminate liability is avoided by denying the existence of, or limiting the scope of any duty of care. The absence of a duty of care to protect claimants from suffering relational economic loss was usually explained, often by reference to the facts of Spartan Steel v Martin (1972) and many candidates were also able to develop a basic discussion of the rules restricting the recovery of pure economic loss following reliance on negligent statements. Relatively few candidates, however, were able to extend their discussion so as to incorporate defective product economic loss or liability under the extended Henley Byrne principle. Whilst many candidates engaged in a brief explanation of the policy concerns underpinning this area of the syllabus, few were able to provide a more detailed discussion of the separate reasons for denying or restricting liability in each of the categories just mentioned. Relatively few students provided a direct answer to the question by explicitly demonstrating how the rules have been framed to prevent indeterminate liability. Question A4 (private nuisance) This question was the most popular essay and the second highest average scoring question across the whole paper. The majority of candidates were able to define private nuisance, the interests protected by this tort and to explain who can sue and be sued. Most were able to explain how a balancing of conflicting interests is achieved principally through the application of the reasonable user test. Relatively few candidates engaged in a discussion of relevant defences. In discussing both the elements of private nuisance and the defences, many candidates were still apparently unaware of the significance of the decision of the Supreme Court in Coventry v Lawrence (No.1) (2014). There was also little appreciation that the issue concerning the claimant s abnormal sensitivity has probably now been overtaken by the introduction of the remoteness of damage principle in private nuisance (Cambridge Water v Eastern Counties Leather plc (1994); Morris v NRI (2004)). In discussing remedies, candidates often did not appreciate that injunctions are frequently used to restrict nuisance-making activities rather Page 4 of 9
than to entirely prevent them e.g. Kennaway v Thompson (1981). This was a further possible illustration of the balancing of conflicting interests in relation to the tort of private nuisance. Candidates mentioning the rule in Rylands v Fletcher (which was recognised as a specific application of the tort of private nuisance in the Cambridge Water case) were credited for this discussion, though it should be appreciated that the difficulty in establishing nonnatural use means that the tort is very rarely successfully invoked and therefore currently of very limited practical use. Question B1 This was the second 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 Area Health Authority (WAHA) by (a) Adrian (b) Charles and (c) Francine. The best candidates 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. In the first part of the question, most candidates identified WAHA as the occupier of the waiting room floor according to the control test in Wheat v Lacon (1966), and Adrian as a lawful visitor, who was therefore owed a common duty of care under s.2(2) Occupiers Liability Act 1957 (OLA 1957). At this point, candidates generally struggled to deal correctly with the issue of breach of duty. It was necessary to determine the relevant standard of care applicable to WAHA and whether WAHA s conduct fell below this standard. In addition to the guidelines specifically referred to in OLA 1957, few candidates appreciated that general common law factors affecting the standard of care in negligence also applied to Adrian, such as the magnitude of the risk and any known or foreseeable vulnerability of those likely to visit the premises. In assessing breach (i.e. whether WAHA s conduct fell short of the required standard) the starting point is usually to consider what precautions have already been taken by the defendant to prevent accidents and what more might reasonably have been done (taking into account the cost and practicality of additional measures) to reduce the risk further. Thus the likely source of WAHA s potential breach here was a failure to institute a system of regular inspection to ensure the waiting room floor was free from obstructions. Very few candidates considered the possible application of res ipsa locquitur (e.g. Ward v Tesco Stores (1976)) as a means by which Adrian might have sought to establish a breach of duty. A number of students considered irrelevant issues such as the application of s.2(3)(a) OLA 1957, ignoring the fact that Adrian was not a child claimant. The thin skull rule was frequently raised, even though there was no indication that Adrian s entirely foreseeable injury had been exacerbated by some unusual/unforeseen physical weakness. Charles s claim against WAHA was generally well analysed. Most candidates were able to identify the defective chair as being premises for the purposes of s.1(3)(a) OLA 1957, and spotted that WAHA were likely to argue that they had discharged their duty to patients by entrusting the maintenance of the chair to a competent contractor under s.2(4)(b) OLA 1957. However, relatively few candidates stated and fully applied all three elements necessary for the operation of this provision. The treatment of Francine s potential claim was mixed. Most candidates recognised Francine s probable status as being non-visitor/trespasser, though there was relatively little mention of case law on the occupier s tacit acceptance of the presence of those who frequently come onto the land so as to amount to an implied licence (e.g. Edwards v Railway Executive (1952) and Harvey v Plymouth CC (2010)). Candidates were generally able to state the three requirements for a duty of care to arise in relation to non-visitors under s.1(3) OLA 1984, though few responses applied all three of these requirements clearly to the facts of the scenario. A very large number of candidates described non-visitors (who fall under the 1984 Act) incorrectly as unlawful visitors or non-lawful 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 Page 5 of 9
attraction as being upgraded from a non-visitor 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 operates to preserve the child s status as a visitor and not to upgrade it. There was no indication, on the facts, that Francine had been allured into the woods due to any particular feature of the premises, and thus the principle was not relevant in any case. There was also widespread discussion of the defences of contributory negligence and ex turpi causa. Both defences were unlikely to apply to the facts described. For example, it is unlikely that Francine s intoxication (if any) had caused or contributed towards her injuries, bearing in mind that the wire fence was beaten down and obscured by leaves (e.g. Owens v Brimmell (1977)). Nor does it seem likely that her injuries could be said to have been caused primarily by her own criminal conduct, rather than the defendant s tort for the purposes of applying ex turpi causa (Gray v Thames Trains (2009)). As noted in previous examination reports, a large number of candidates were unable to accurately pinpoint statutory provisions. It was common, for example, to find s.2(4)(b) OLA 1957 (discharge of duty by entrusting maintenance work to a competent independent contractor) being referred to as s.4(a) and s.1(3) OLA 1984 being referred to as s.3. 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 (negligence/battery/vicarious liablity) Over 70% of candidates attempted this question. Part (a) required analysis of an employer s vicarious liability for an act of negligence committed by a worker on a zero hours contract. Part (b) required an analysis as to whether an agency worker who committed a battery on a customer would make either the agency, or the business supplied with her services, vicariously liable. Most candidates were able to state the three elements required for vicarious liability, namely (1) the commission of a tort by the worker (2) an employment or analogous relationship (3) commission of the tort in the course of employment or analogous relationship. Relatively few candidates thought it necessary to identify which tort might have been committed in each scenario, or to discuss and apply the elements of these torts to the facts. Thus there was usually no analysis of Imran s negligence in part (a) or Karen s battery in part (b). This was a shame, because marks were allocated for discussion of these torts, the elements of which were readily satisfied according to the circumstances described. For those students who did discuss Karen s liability in the tort of battery, many candidates were unaware that contributory negligence is no defence: Co-Operative Group v Pritchard (2011). The vast majority of candidates considered only whether Imran and Karen could be considered as employees of Gaston (and in Karen s case, also Hattie) in the traditional sense, and not whether a relationship akin to employment might exist instead according to recent case law (e.g. Various claimants v Catholic Child Welfare Society (2013), Cox v MOJ (2016)). Candidates too readily assumed that an employment relationship could be found between the parties according to the mixed test adopted in Ready Mixed Concrete v Ministry of Pensions and National Insurance (1968) without fully explaining why this might be the case. There was also relatively little awareness of the circumstances in which dual vicarious liability may attach to both special and general employers following cases such as Viasystems v Thermal Transfer Ltd (2005) and Catholic Child Welfare Society in part (b) of the question. Finally, whilse most candidates were able to provide sensible analysis as to whether each tort had been committed in the course of employment (or similar relationship), relatively few candidates were aware of the impact of the decision of the Supreme Court in Mohamud v Morrison Supermarkets plc (2016) regarding the application of the close connection test where intentional torts are committed by customer-facing employees. Page 6 of 9
A large number of candidates discussed various aspects of the primary duty owed by employers to take reasonable care so as not to expose their employees to unnecessary risk, ignoring the clear instructions in both parts of the question to discuss vicarious liability, and forgetting that those being advised as claimants were customers, rather than employees of the owner of the coffee shop. Question B3 (liability of public authorities in negligence) This question was spilt into two parts. Part (a) concerned the liability of the local authority, the police and ambulance services in negligence for failing to act/failing to act promptly. Part (b) required candidates to consider the liability of the fire service, both for failing to respond promptly, and for a positive act of carelessness upon arrival at the scene of a fire. The question was the least popular of those in Section B and attracted the second lowest average score on the paper. In part (a), very few candidates spotted that the local authority s failure to warn Oscar of the danger posed by his neighbour took the form of a pure omission. Thus it was necessary to consider the exceptional circumstances in which a duty to act positively for the benefit of others might arise e.g. the exceptions identified by Lord Goff in Smith v Littlewoods Organisation Ltd (1987). The circumstances were, in fact, already covered by precedent i.e. the decision of the House of Lords in Mitchell v Glasgow City Council (2009). Candidates were credited for any sensible discussion of the likely problems establishing a duty of care in such a situation, including the likely policy considerations at play. In discussing the potential liability of the police service in the light of its failure to respond promptly to the incident, many candidates were able to provide an account of the Hill immunity principle (Hill v CC South Yorkshire Police (1988)) but were generally unable to develop this discussion in the light of more recent cases, especially Michael v CC South Wales (2015) which is now the leading case on the Hill principle. Despite the frequent assertion that the police do not owe a duty of care to individuals in the investigation and suppression of crime (in the absence of a specific voluntary assumption of responsibility to protect the claimant s welfare), many candidates reached the surprising conclusion that the police would nonetheless be liable for their delayed response. There was a widespread misconception that Osman v UK (1998) removed police immunity in the tort of negligence. The initial finding of the ECtHR in this case that the Hill immunity principle infringed Art 6 of the European Convention was subsequently revised by the same court in Z v UK (2001). Few candidates were aware that, whilst Osman lays down a public law test that may be used to establish liability against the police service under Art 2 ECHR (the right to life), the general immunity for the negligent investigation and suppression of crime persists. In answering part (a), most candidates chose to apply the 3-part Caparo test to determine whether each defendant owed a duty of care, despite there being specific case law covering each of the scenarios e.g. Kent v Griffiths (No.2) (2000) concerning the ambulance service. It is important to remember that problem questions are often based around scenarios in which decided cases establish the existence (or non-existence) and scope of any duty of care. Often the starting point is therefore to consider similar past cases: it will rarely be necessary or relevant to consider the Caparo formulation in the level 6 Law of Tort exam, except insofar as the test may apply in certain negligent misstatement cases. Candidate responses to part (b) gave rise to similar observations: the best answers considered the scope of the duty of care owed by the fire service, which is limited to the avoidance of positive acts of carelessness that make the claimant s situation even worse than if there had been no response at all (Capital & Counties Bank plc v Hampshire CC (1997). Thus the fire service were not liable for the destruction of the police station, but potentially liable for the flood damage resulting from the carelessly damaged fire hydrant. A successful claim by Nigel was subject to the issue of breach and the lower standard of care applicable in emergency situations and to socially valuable activity. Page 7 of 9
Question B4 (negligently inflicted psychiatric harm) This question was the most popular on the paper, though it was not the highest scoring. The best candidates adopted a sensible structure by considering each claim, one at a time. They first considered whether each claimant had suffered medically recognised psychiatric harm before discussing the status of each claimant as either a primary or secondary victim. Where this was not clear, the best students considered both possibilities and went on to consider the different foreseeability/proximity tests applying to each category of victim. As with all problem questions, a careful (and repeated) examination of the facts of the scenario was needed. In paragraphs two and three Quincy s instruction to Theo to overload the power socket, and Quincy s failure to maintain the sprinkler system were described as negligent. Thus Quincy s liability for the physical injuries and deaths in the ensuing fire was not in doubt. It was only necessary for candidates to consider whether the duty owed by Quincy extended to the protection of the various claimants from suffering psychiatric injury. Whilst the question attracted a relatively high average score, student performance was often undermined by inaccurate quotation of the definitions of primary and secondary victims. This inaccuracy was widespread and has been frequently encountered in past examination questions on the same topic. It may be that some candidates have been presented with inaccurate or misleading institutional/revision notes on this topic, and centres are encouraged to check that this inaccuracy does not form part of their teaching of this topic. It should be remembered that the distinction between primary and secondary victims was first articulated by the House of Lords in the case of Alcock v Chief Constable of the South Yorkshire Police (1991), and later affirmed in Page v Smith (1995) and White v Chief Constable of South Yorkshire Police (1999). Thus earlier cases needed to be considered carefully for relevance in discussing the current rules. Primary victims are directly involved in the incident and are either exposed to personal danger, or have a reasonable belief of personal endangerment. They are in the area of physical risk when an incident occurs. Secondary victims are those who are neither in personal danger, nor reasonably believe themselves to be, but who suffer psychiatric harm as a result of perceiving the death, injury or endangerment of a primary victim. Most candidates incorrectly defined the primary/secondary victim distinction, explaining that primary victims fear for their own safety whilst secondary victims fear for the safety of others. These explanations were inaccurate in a number of respects. Fear is not a necessary requirement for liability in either case. A claimant who is physically endangered by the defendant s negligence will be a primary victim even if the psychiatric harm was caused through the perception of what happened to others, and not through fear for his/her own personal safety e.g. Young v Charles Church (Southern) Limited (1997). Similarly, those who fear for their own safety but who are found to be outside the immediate zone of danger are likely to be secondary victims e.g. McFarlane v EE Caledonia (1993). In secondary victim cases, the requirement is merely that the claimant suffered psychiatric harm caused by a sudden shock induced by a direct perception of an accident (or its immediate aftermath) in which those with whom the claimant has close ties of love and affection are involved. The secondary victim s experience may or may not involve a fear for the safety of others. In discussing Rosie s claim, many candidates considered whether Rosie might be a primary victim due to her proximity to the accident was she personally endangered by Quincy s negligence? Many candidates assumed this to be the case, though the facts did not make it clear. Whilst this approach was credited, very few candidates considered the continuing uncertainty as to whether psychiatric harm caused by the perception of property damage might be recoverable. Pre-Alcock case law (e.g. Attia v British Gas plc (1987)) suggests extreme circumstances, such as those affecting Rosie who witnessed the destruction of her life s work, might give rise to a successful claim. However, it is unclear whether this approach has survived the onerous control tests placed on those secondary victims who experience the death, injury or endangerment of a close relative. Many candidates who considered Rosie to be a primary victim proceeded to apply the 3-part Page 8 of 9
Caparo test to determine the existence of a duty of care, not appreciating that it was only necessary to determine whether personal injury (either physical or psychiatric harm) was reasonably foreseeable in the circumstances Page v Smith. Discussion of Theo s potential claim against Quincy also resulted in many candidates displaying poor problem-solving technique. Many candidates assumed that Theo s symptoms fell short of recognised psychiatric harm and failed to consider whether the long lasting consequences of the accident might be symptomatic of such illness. Ultimately, this would be a matter to be determined by expert psychiatric evidence. Having made the assumption that Theo had not suffered recognisable psychiatric harm, many candidates failed to consider Theo s claim further, even though the facts were designed to get candidates to consider further issues. Many candidates who did proceed with their analysis assumed that Theo was present at, and personally endangered by the fire. Again, the facts were deliberately ambiguous so that the issue could not be conclusively determined. A full answer would have required consideration as to whether Theo might claim as a primary victim or, if not, as a secondary victim. The majority of candidates also did not consider whether, as an unwitting agent, Theo might fall into a special category of primary victim according to a line of cases including Dooley v Cammell Laird & Co Ltd (1951), W v Essex County Council (2000) and Hunter v British Coal Corp (1998). There was also a widespread belief that Theo was owed a special duty of care by Quincy due to the existence of an employment relationship. Many candidates did not appreciate that employees who suffer psychiatric harm arising from a single negligently caused incident are treated in the same way as ordinary primary and secondary victims: White v Chief Constable South Yorkshire Police. Victoria s claim was generally well analysed, and candidates proved adept at quoting and applying the criteria necessary for a duty of care to extend to secondary victims under the Alcock case. However, few candidates considered Lord Keith s observations in Alcock that the presumption of close ties of love and affection would probably extend to those engaged to be married. Very few candidates considered that, even though the Alcock criteria were arguably satisfied when taking into account Victoria s experience of the immediate aftermath of the incident, the claim might still be barred on policy grounds given that the primary victim was the tortfeasor (e.g. Greatorex v Greatorex (2000)). In analysing Wayne s claim, most candidates appropriately cited the case of White v Chief Constable South Yorkshire Police in relation to the position concerning rescuers. However, there was a widespread misperception that claims by professional rescuers are barred on policy grounds because dealing with horrific incidents is part of the job. Again, this argument was specifically rejected by the House of Lords in White. Rescuers, whether professional or ordinary bystanders are subject to the ordinary rules concerning primary and secondary victims. Thus the relevant question in this case was to determine whether Wayne had been personally endangered whilst dealing with the fire. A large number of candidates mistakenly assumed that Wayne would have had to be present at the very start of the incident, not appreciating that disasters such as the one described in this problem question may unfold over a number of hours and are not to be considered as occurring at a specific moment in time. Page 9 of 9