Examiners report 2010

Examiners report 2010

266 0001 Law of tort Zone A

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

Specific comments on questions

Question 1
During the banking crisis that started in 2008 Failing Bank plc set up a
scheme under which some of its information technology specialists would be
seconded to work one day each week for local charities to offer them
appropriate advice. Under this scheme Rita was seconded to work for Priti

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who runs a small charity that gives training in basic computer skills to young
adults with special educational needs.
One afternoon Rita, while working for Priti, saw Sam, one of the young
adults whom she had been teaching earlier, getting into a lift. She followed
him into the lift and, as it descended, said to him, Why dont you come
home with me to-night? Ill get you drunk and then we can have some fun.
Sam was petrified and, when the lift doors opened, he rushed to get away.
Sam had very poor eyesight and ran into a glass door. He was very badly cut
and has permanent scarring to his face and neck.
Advise Sam. [Do not consider any possible claim against the occupiers of the
building.]
There are in principle three kinds of claim that Sam might consider.
The first is to argue that Rita has committed a tort in the course of her
employment with Failing Bank or with Priti: discussion of this
possibility should have taken up most of the answer. Many candidates
assumed or explained that Rita had committed an assault, but this is
rather unlikely as Sam could have had no reason to fear the immediate
application of physical force. More likely she is negligent, especially as
she had some knowledge of the characteristics of the people she was
teaching and might foresee their likely reaction. She certainly appears
to be an employee of Failing Bank, but consideration has to be given as
to whether she has become instead or in addition an employee of Priti.
Is the presumption that a borrowed servant normally remains the
employee of the lender applicable? There is then the question of
whether the facts can be brought within the principles in Lister v Hesley
Hall and other cases so as to make the employer(s) vicariously liable.
A second line of argument is that the Bank (or, less probably, Priti) was
primarily (as opposed to vicariously) liable through being in breach of
a duty of care. This does not require extensive discussion: it is
sufficient to raise the possibility that, if the Bank had reason to know or
believe that Rita was a temperamentally unsuitable person to work
with vulnerable people, it might be in breach of duty.
A third line of argument is that the glass door was a danger on the
premises. However the instructions in the question say quite clearly
that this is not to be discussed. Nevertheless a surprising number of
candidates disobeyed the instruction. No marks can be given for this
and it takes up valuable time that should have been devoted to the
appropriate issues.

Question 2
Jasper, aged 8, was a resident in Demonic Hall, a care home run by the
Bruteshire County Council. Bruteshire Social Services had taken him into care
as his parents could not control him. He had tried to stab his mother and had
attacked other children at school. One afternoon, after he had been refused a
second helping of ice cream, he wandered out of Demonic Hall carrying a
carving knife that he had found lying in the kitchen. Nell, an elderly passerby,
asked him whether he needed help, but he slashed her arm with the knife
and ran off at speed. He ran into the path of a car, which was being driven
with reasonable care. Jaspers injuries were very serious and he was taken by
air ambulance to a specialist spinal injuries unit. Nells injuries were not
thought to be serious and she was taken by road ambulance to the
Bruteshire Hospital. The ambulance was delayed in heavy traffic for almost

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an hour. Nell began to lose a lot of blood and became very distressed. Before
the ambulance eventually reached hospital, she suffered a stroke.
Despite receiving expert medical treatment, Jasper is now paralysed and has
to use a wheelchair. Nell now has problems with speech and mobility.
Advise Jasper and Nell.
The central issue is to identify the nature of any duty owed to take care
to prevent a resident of Demonic Hall from escaping. It is not enough
to produce a general answer about proximity, foreseeability and
whether it would be fair, just and reasonable. Attention should instead
focus on cases stemming from Dorset Yacht (in respect of Nell) and
Carmarthenshire County Council v Lewis (in respect of Jasper himself)
and whether the fact that Jasper had access to the kitchen and to
knives and could apparently easily leave the building demonstrated a
breach of any duty of care for which the county council might be liable.
The positions of Jasper and Nell then require separate treatment.
The question states that the car was being driven with reasonable care
and that Jasper was given expert medical treatment at the hospital.
This means that the duties of care owed by the driver and by the health
authority had not been broken; therefore it was not appropriate to
discuss claims against them. The relevance of these incidents relates to
the original liability of the county council: since there is no negligence
on the part of the driver or the hospital, the council would not be able
to argue that there was a new intervening cause (nova causa
interveniens). Further, since the duty on the council was to protect
Jasper against injury, it would be difficult for them to argue that his
own wrongdoing provided any sort of defence (compare Reeves v
Metropolitan Police Commissioner).
In relation to Nell, it is necessary to consider whether and to what
extent the original failure to diagnose the seriousness of her condition
or the delay in transferring her to hospital might amount to a breach of
duty by the health authority. If there is a breach of duty, the effect it
might have on the liability of the county council should be discussed.

Question 3
The Grungetown Chamber of Commerce, which represents the interests of
small businesses in Grungetown, has objected to new regulations introduced
by the Grungetown City Council. At a meeting of the Chamber, a resolution
was passed that members of the Chamber would not do any work for
councillors until they had agreed to meet representatives of the Chamber to
discuss their concerns. Edward Fish, Michael Haddock and Robert Salmon are
members of the Chamber. Edward Fish does not approve of the protest and
continues to carry out building work for councillors. Michael Haddock, an
electrical contactor, has joined the protest but one evening carried out work
without payment for a neighbour, an elderly councillor, when all her lights
fused. Robert Salmon has done no work for councillors.
A recent issue of the Chamber of Commerce newsletter carried an editorial
which read, Sadly some of our members have no sense of loyalty. They have
preferred their own immediate financial interests to the long-term collective
good of our members. Shame on them! We do not need to name them. They
know who they are. There is a row of small drawings of fish at the foot of
the editorial.

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The newsletter is sent to all members of the Chamber. An unknown person

left a number of copies on display at the library of Grungetown Technical
College and they remained there for two weeks.
Advise Fish, Haddock and Salmon as to any claims in defamation.
There are several ways in which the relevant material could be
organised. Perhaps the best is to start with issues arising out of the
original publication in the newsletter and later discuss liability in
respect of copies left in the library. The three claimants can be
considered together.
There is no doubt that the original article has been published and that,
if the article is defamatory, it is a libel. These matters should be
disposed of very briefly. Most candidates were sure that the words
were defamatory, but there is scope for argument. The question is
whether right-thinking members of the public would think less well of
the claimants and not whether members of the chamber would do so.
Would the public think less well of people who get on with their jobs
rather than join a political protest? The protesters might even be
committing one of the economic torts (although only answers on
defamation were asked for). It may be however that the suggestions of
greed and disloyalty are enough to make the article defamatory.
The issue of reference to the claimant is the most important aspect and
was the cause of a serious error by many candidates, who did not
consider the facts carefully enough and ended up deciding that the
claimant with the strongest case (Salmon) had no case at all. The thing
that links the statement with the unnamed claimants is the drawings of
fish: the surname of one of them is Fish and the surnames of the other
two are the names of common fish. A reader might therefore conclude
that all or any of them were the subject of criticism. A number of
candidates reasoned that Salmon could not be referred to because he
had not joined the protest, but this cannot be correct. Salmons anxiety
is that people who know him and read the article will come to the false
and defamatory conclusion that he was not protesting.
Then it is necessary to consider the available defences. The remarks
that suggest that the claimants have continued to work for councillors
and been paid for the work are clearly allegations of fact. They are true
in respect of Fish, partly true in respect of Haddock and false in respect
of Salmon. To what extent then are they protected by the defence of
justification? Are the remarks that suggest that the claimants are
greedy or disloyal facts or comment? If they are to be treated as facts,
it would be difficult to establish that they are true in respect of any of
the claimants, but, if they are treated as comments, they might be
shown to be fair in so far as the facts on which they are based are true.
If the author intended that the words referred to the claimants, then he
may seek to rely on the defence of qualified privilege. If, as seems
likely, he did not intend that the words refer to Salmon (and perhaps
not to Haddock either) then he may seek to rely on the defence
afforded by sections 2 to 4 of the Defamation Act 1996.
Finally there is the question of the copies left at the Technical College.
This gives rise to three possible issues.
(i) Can it be assumed that there is publication or would it have to
be shown that any copies had been taken or read?

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(ii) Can the original author be liable for the extended publication?
(iii) Would the College authorities be liable or can they rely on
section 1 of the Defamation Act 1996?

Question 4
[C]ases have made clear that, as a matter of law, if A owes B a duty of
care, A must attain the standard of a reasonable person in order to
discharge that duty. In short, the duty is one to take reasonable care. The
courts have recourse to a range of considerations in deciding whether this
standard has been met. (Street on Torts)
Discuss.
This question was about, and only about, the standard of care in a
negligence action, i.e. whether or not a defendant was in breach of the
duty of care. It was not, as a number of candidates thought, about the
circumstances in which a duty of care arises. Such answers could
receive at most a token mark. Nor did it call for what some candidates
provided, a summary of the whole of the tort of negligence. It was
reasonable to put the answer in the overall context of the tort of
negligence, but this should have taken at most four of five lines.
A good answer should have gone on to explain the objective nature of
the standard of care and what the attributes of the reasonable person
might be. It should then have discussed the range of considerations.
Most candidates did refer to the importance of measuring the
defendants conduct against what would reasonably be expected of
the group to which the defendant belonged such as doctor, engineer,
motorist or child. A large number, however, failed to consider a
different set of extraneous considerations such as: the likelihood of
damage occurring if particular precautions were not taken; the likely
seriousness of any harm that did result; the social utility of the
defendants conduct (almost no candidates mentioned section 1 of
the Compensation Act 2006); the costs of eliminating or minimising
the risk.

Question 5
Where the claimant complains of a nuisance created by the defendant, the
law is quite straightforward: complications arise in deciding when
defendants should be liable for a nuisance which they have not themselves
created.
Discuss.
The first half of the question required a general account of the
elements of the tort of private nuisance. The second half required a
more detailed consideration of those situations where the nuisance
arose on the defendants land, for example because it was created by
an employee, guest, tenant, licensee, trespasser or predecessor in title
or arose as the result of natural processes or occurrences. Some
reference to the rule in Rylands v Fletcher could have been included,
but it was a mistake to regard the second part of the question as
concerned with that rule alone.

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Question 6
Wurzel, a farmer, organised a funfair on two of his fields to raise funds for a
charity that he supported. Among other attractions he contracted with Dans
Daredevilry Ltd, a company that owns and supplies fairground equipment, to
set up a chair-o-plane. Louis, aged 12, attended the funfair with a group of
friends. His friends suggested taking a ride on the chair-o-plane but Louis
protested that he suffered from vertigo and was terrified of heights. Dan
overheard this and said, Your mates will all think you are a great wimp.
Theres nothing to it. Its just like being in a plane. Theres a bar holding you
in. You cant fall. Louis therefore went on the ride but panicked and started
screaming, Stop it. Let me out. I cant stay here. When his chair reached
the bottom of the ride, he found that he could squeeze up from under the bar
to jump out, but hit his head on a post and was knocked out. He was taken to
hospital. His mother, Stacey, was called and went straight to the hospital.
Louis received expert medical treatment but never regained consciousness.
After several weeks doctors told Stacey that he was in a persistent
vegetative state and she agreed that his life support machine could be
switched off and Louis died. Stacey had been at his bedside for almost all the
time since the accident. She now suffers from a serious psychiatric illness.
Advise Stacey in respect of Louis death and her own illness. [Do not discuss
any possible liability of the manufacturers of the chair-o-plane.]
The main claim arising out of Louis death would arise under the
Occupiers Liability Act 1957. Wurzel is clearly the occupier of the land
on which the funfair is situated, but would try to argue that under
section 2(4)(b) he is not in the circumstances liable for the fault of the
independent contractor.
Dans company could well be treated as the occupier of the chair-o-
plane itself, and the ride could fall short of appropriate standards in
that passengers were not held sufficiently securely and could escape
under the bar and be injured in the process. Alternatively there might
be a negligence action against Dan for encouraging Louis on to the ride
despite his protestations, or even an action in false imprisonment for
refusing to release Louis when he demanded to be let off before the
ride had been completed.
It is stated that Louis received expert medical treatment and so there is
no room to argue that the hospital was negligent or that their
determination that there was no hope of improvement in his condition
was unsound.
Stacey clearly satisfied a number of the criteria for a successful claim
for psychiatric injury: she suffers a recognized illness and she is
presumed to have a close tie of love and affection with Louis. The
discussion should therefore focus on the degree of physical and
temporal proximity. She is with Louis while he is unconscious and
when he dies. The element that may be lacking is that of a sudden
assault on her senses. To what extent do the cases on claims by
secondary victims include those who witness a prolonged period of
suffering rather than a sudden and shocking incident?

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

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