Examination papers and Examiners reports 2005

Examination paper 2005

Zone A
Time allowed: three hours.
Answer four of the following eight questions.

1. Joseph underwent spinal surgery at the Rundown Hospital. His surgeon,

Karen, was pioneering a new technique of rehabilitation under which
patients were made to undertake strenuous physical activity within a
few hours of leaving the operating theatre. She has written this up in
medical journals. Some other surgeons see merit in the approach, but
most are highly critical. Joseph was subjected to this regime. A nurse,
Laura, was asked to walk Joseph up and down the corridors and
perform various exercises. After half an hour Joseph complained of
breathlessness and collapsed. After two hours in a coma, he died. His
mother, Mary, who had previously been told that he had survived the
operation well, was called back to his bedside. Because of a mix up in
the hospital, no-one was able to tell her where Joseph had been taken.
Another hour elapsed before she was directed to the correct ward.
When she got there, she was told that Joseph had died a few minutes
earlier. Laura and Mary were both very distressed and are suffering from
a serious psychiatric illness as a result of these experiences.
Advise Joseph's estate, Laura and Mary.
2. Once it is accepted that tort law recognises liability for careless words
as well as careless behaviour, there is a clear need for a control device to
deal with the threat of indeterminate liability. (Markesinis and Deakin:
Tort Law)
Discuss. What control devices have been used for this purpose, and how
successful have they been?
3. As part of its centenary celebrations, Sink College organised a talent-
spotting contest. The stage and other equipment were set up by
Malmonter, a French company. The Colleges Finance Officer had
happened to see their services advertised on the internet and was
attracted by their competitive rates. While Basil, one of the contenders,
was performing on stage, it collapsed and injured his left leg. Basil was
a talented 17-year-old football player, thought likely soon to sign a
contract with Manchester United. His leg received expert medical
attention. He made a good recovery but his leg would always have some
residual weakness. His doctors thought that he would be able to play
soccer for a minor club, but had no hope of ever playing for a
premiership team.

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Law of tort

A few weeks after Basil returned home, his father collapsed in the
garden. Basil saw what had happened from an upstairs window and
rushed outside. He fell awkwardly and broke his leg very badly. There is
now no prospect of his playing professional football at any level.
Malmonter is now out of business and has no assets. Advise Basil as to
any tort claim against Sink College on each of the following alternative
assumptions:
(a) he fell in the garden because his left leg gave away: this would
probably not have happened but for the accident on the stage
(b) his fall in the garden had nothing to do with his previous leg injury.
4. Because of complaints about difficulty in finding competent builders,
electricians and other tradesmen in the area, Gammashsire County
Council started a register of approved tradesmen accessible through the
council's website. In the council newsletter circulated free of charge in
the county, there is a section entitled, What your council does for you.
In this section the following item has appeared regularly: No more
hassle or worry about shoddy builders or dodgy electricians. For a
decent service, just enter our website, and click on Tradewatch. You'll
find all the information you need.
In February 2005 Stella, needing an electrician, found Trevor's name
through the council website. Trevor carried out electrical work in her
house. When she next switched on an electrical appliance, there was an
explosion and fire broke out. A neighbour phoned for a fire engine, but
the driver misunderstood his instructions and went to the wrong
address. The house was gutted. Three people had complained to the
council about Trevors workmanship between November 2004 and
February 2005, but, because of staff shortages, these complaints had not
been investigated and the website had not been updated since the
beginning of 2005.
Advise Stella.
5. Mark, his brother Neil and his son Orlando, aged six, went on a trip to
the seaside. They took an inflatable boat, still in its box, which Mark
had purchased from a supermarket. The boat had been manufactured in
Belgium by Tintin Ltd. Painted on the side of the boat were the words
Tiny Tot Boat. There were no instructions inside the box, but on the
outside of the box were the words: Suitable only for children aged 7
and under: do NOT use on the sea. When Mark bought his boat, the
sticky price label had been placed over the word sea. At the seaside
Neil climbed into the boat and pushed off into the sea. When he was
some distance out, the boat burst and Neil hit his head on a rock,
causing himself serious head injuries. It has now been established that
the boat did not comply with the Toy Boats (Construction and Use)
Regulations 2003 in that the rubber was not of the required strength.
Advise Neil.
6. The principle which the rule [in Rylands v Fletcher] reflects is also
easily apparent. It is that the law of private nuisance recognises that the
risk must be born by the person responsible for creating it and failing to
control it. (Transco plc v Stockport Metropolitan BC (2004) per Lord
Hobhouse of Woodborough)
Discuss.

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 Examination papers and Examiners reports 2005

7. For many years St Johns Church in Grimetown has held an annual fair
to raise money for church funds. Members of the congregation bake
biscuits, sweets and so forth in their own homes and these are sold to
visitors to the fair. Recently the three-person Health and Safety
Committee of the Grimetown District Council, following advice from
their Health and Safety Officer, advised that they would no longer grant
licences for premises at which home-baked food was on sale unless the
kitchens in which the food was prepared were inspected annually by the
council. At the meeting of church workers to plan the 2005 fair, Muriel,
the vicar's wife, reported this and said:
I know safety is important, but I never heard of anyone being poisoned
at one of our fairs. This decree means that we shall have to purchase
food commercially. One wonders if some of these so-called experts have
any common sense or if they work to some hidden agenda. The local
newspaper, the Grimetown Echo, heard of these comments and
published a news item headed, Vicars wife slams food diktat. The
item stated, Muriel inveighed against the councils new policy on food
hygiene, slamming those who took the decision as ignorant and devious.
The church may care for our souls but they should think about our
physical wellbeing as well. Her attitude is disgraceful.
The Grimetown Echo is part of a syndicate of local newspapers and the
item is also published in other newspapers in different parts of the
country.
Advise as to any actions in defamation.
8. Alphashire Cricket Club was very concerned about the lack of interest in
cricket among young people in the county. It therefore entered an
agreement with local schools under which players from the club spent
one afternoon each week coaching pupils. Under this arrangement
Jamie spent an afternoon at the Alpha Beacon School. One day he saw a
number of pupils, including Kieran, drawing faces in the dirt on his
(Jamies) car and became very annoyed about it. During a match that
Jamie was umpiring that afternoon, Kieran dropped an easy catch.
Jamie picked up the ball and slung it straight at Kieran's head. Kieran
was unable to get out of the way, and the ball struck him in the head.
Unexpectedly the blow caused very severe brain injuries. He now has
the mental capacity of a four-year-old and will never be able to find
employment. He had been hoping to go into the Royal Air Force and
had passed the first stage of the interview process.
Advise Kieran (i) as to any action in tort and (ii) as to the assessment of
damages.