Examiners report 2013

Examiners report 2013

LA3001 Law of tort Zone A
Introduction
A disappointing number of candidates (though fewer than in 2012) failed to answer
four questions. This is the most easily avoidable error of all. You must make sure
that you answer the right number of questions: if not, you cannot do justice to
yourself. Many candidates demonstrate that it is perfectly possible in the time to
write four answers, even four excellent answers. Some of the extracts show how it
is possible to express even complicated issues in a clear and relatively brief way.
There were fewer scripts this year that answered issues or advised parties not
asked about by the Examiners, but see the comments on Questions 1 and 7.
Please note that, although some illustrative cases are listed under each question,
this does not imply that these are the only cases to be cited. Although generally
these are the most important, there is often a considerable variety of available case
law that candidates can choose from to illustrate their arguments.

Specific comments on questions

Question 1
Sydney is a professional boxer. During one fight he received a succession of
punches from his opponent Tanzeer and seemed to become confused. Urban,
the referee, however did not stop the fight or give Tanzeer any warning. At the
start of the next round Tanzeer landed a punch on Sydneys jaw and knocked
him out. Sydney received emergency treatment from Victor, a doctor on duty
at the ringside and was then taken by ambulance to hospital. On the way to
hospital his condition deteriorated but Wanda, the paramedic in the
ambulance, decided that it would be advisable to get him to hospital as
quickly as possible rather than to carry out an emergency procedure in the
ambulance. At the hospital he was treated by Xain, a consultant, but has
suffered severe and permanent brain damage.
The medical experts are all now agreed (a) that no fault can be found with the
treatment provided by Victor or Xain and (b), that, if Wanda had successfully
carried out the difficult emergency procedure, Sydney would probably not
have suffered the severe brain damage but would never have made a full
recovery and would not have been able to resume his boxing career.
Advise Sydney.
General remarks
Answers should consider two separate claims. The first is a claim in respect of the
initial injury. The possible defendants are Tanzeer and Urban: more time should be

LA3001 Law of tort

spent on Urban than on Tanzeer. The second is a claim against Wanda (and her
employers vicariously) for her arguable failure to treat him properly. Then the
interrelation of the claims has to be considered if both Urban and Wanda are in
breach of their duty of care.
Law cases, reports and other references the Examiners would expect you to
use
Wooldridge v Sumner, Vowles v Evans. Cases on medical negligence such as
Whitehouse v Jordan and subsequent authorities. Cases on intervening cause such
as Robinson v Post Office and Webb v Barclays Bank.
Common errors
The most striking error was the large number of candidates who discussed in detail
the liability of Victor and Xain. The facts state that all the medical experts are
agreed that no fault could be found with their treatment: there is therefore no need
to discuss possible claims against them. A few answers tried to justify the
discussion by stating that according to Bolitho a judge could hold that a medical
practice was irrational, but a judge could hardly come to that view if there is no
medical evidence on either side at all critical of the conduct of the professionals.
Good answers to this question would
point out that Tanzeer had deliberately struck Sydney but that his conduct appeared
to fall within the rules of the game to which Sydney had consented, and therefore
actions in battery or negligence will fail. In Vowles v Evans (see Section 3.3.2 of
subject guide) the Court of Appeal held that a rugby referee owed a duty of care to
players. Although that case concerned rugby, the case will surely be followed in
other dangerous sports. If candidates happened not to know that case, they should
argue from first principles, but it is desirable to say something about why they think
it fair, just and reasonable to recognise a duty on referees. For instance, in Vowles
v Evans it was argued unsuccessfully that people would be unwilling to referee
amateur games in particular if they could be held liable for injuries to players. The
question then is whether Urban did not act as a reasonable referee would. If he is in
breach of duty, then (subject to arguments about the impact of Wandas treatment)
all the damage suffered by Sydney is foreseeable. Wanda as a professional has to
show the care of a reasonable paramedic: a difficult judgment has to be made and
a court might well conclude that she had a difficult to choice to make and a
reasonable person might well have decided to rush Sydney to hospital while other
reasonable ambulance crew might have decided to treat him on the spot. If she was
negligent, did this cause Sydneys injuries? It didnt cause the loss of his career as
a boxer because the facts state that, even if Wanda had been successful, he would
not have been able to resume his career accordingly only Urban can be liable for
damages for loss of career. What about the severe brain damage? Did that break
the chain of causation?
Poor answers to this question
wasted time on Victor and Zain as already stated. They also relied much too much
on Baker v Willoughby and Jobling v Associated Dairies. It was noted last year that
candidates frequently misapplied these cases. They are concerned with the unusual
situation where there are two independent causes of the same damage. Here the
two causes of the damage are not independent. Wandas duty was to take care to
make Sydney better. The armed robbers who shot Mr Baker had no duty of care to
cure his original leg injury.
Student extract
Now Urban can say that Wandas act was a new and intervening cause
breaking the chain of causation (Knightley v Johns) but by an analogy to
Robinson v Post Office and Webb v Barclays Bank medical negligence or

Examiners report 2013

here by a paramedic would only break the chain of causation if it is grossly

negligent which it does not look on the facts. Also it was said in Mahoney v
Kruschich that some risk of medical negligence is entailed within the breach
of duty. It is more likely (as it was preferred in Rahman v Arearose) that the
court would apportion liability (Civil Liability (Contribution) Act 1978) between
Urban and Wanda (if she is in breach) to the extent of their culpability.
Comment on extract
This is a fairly good attempt to come to grips with some difficult law. It provides a
very clear and succinct account of the causation issues that arose here and
presents a very plausible solution to the problem. The case of Mahoney is a
decision of the High Court of Australia from 1985: most candidates would of course
not know of it but it is relevant to the argument. It is absolutely not essential to refer
to it in order to get a good mark. The final sentence is not quite correct because
although the court did apportion liability to the doctor and the original assailant, it
was not on the basis of the 1978 Act. A difference between that case and the
present problem is that the doctor in Rahman caused additional physical damage
by his negligent treatment, whereas here Wanda merely failed to put right the
damage already caused.
Question 2
The law of vicarious liability is on the move. (Catholic Child Welfare Society
v Various Claimants (2012) per Lord Phillips)
Discuss this statement and explain how, if at all, recent developments
promote the policy reasons for vicarious liability.
General remarks
This case was referred to in a few places in the latest Recent developments
material and the quotation used in the question was cited in that material. It was not
advisable to tackle this question without having previously studied the case
carefully. Lord Phillips gives some of the most important policy reasons for vicarious
liability at [35] and [64]. These could then have been linked to the particular
developments in this and other recent cases. The particular developments that
figured in the 2012 case were these. When is a relationship (such as between the
brothers and the Institute in this case) sufficiently like a traditional employment
relationship to make it fair, just and reasonable to impose vicarious liability? To
what extent is control still relevant to establishing the relationship between
employer and employee? In what circumstances can more than one party be
vicariously liable for the same tort? The question of when there should be vicarious
liability for physical or sexual abuse within an employment relationship was
extensively discussed in the judgment although it was not in dispute on the facts.
Discussion of these could have been part of an overall account of the way vicarious
liability is changing.
Law cases, reports and other references the Examiners would expect you to
use
Illustrative cases on identifying those for whom there could be vicarious liability,
including: Mersey Docks and Harbours Board v Coggins & Griffith on borrowed
servants; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and
subsequent cases on shared vicarious liability; liability for criminal acts such as
sexual abuse following from Lister v Hesley Hall and considered most recently in
JGE v Portsmouth Roman Catholic Diocese.
A good answer to this question would
have put the emphasis on the 2012 case and on the issues it raised. It would have
carefully distinguished between the questions of (i) whether a relationship

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sufficiently akin to employment existed and (ii) whether the tort was in the course of
that relationship, noting that the decision in the 2012 case was primarily about the
former although there was serious discussion of the latter. A really excellent answer
might also have noted that Lord Phillips said that the law was on the move and not
that it had reached a new destination. So a brief perceptive paragraph about further
developments would really have impressed (e.g. Lord Phillips refers to but does not
expand on recent sex abuse scandals in the employment industry). More generally
there is an issue as to whether there should be any connection (and if so what)
between relationships to which vicarious liability attaches and other legal
relationships (e.g. national insurance). The answer should definitely have devoted a
paragraph to the policy reasons that determine the existence and character of
vicarious liability.
Poor answers to this question
tended to give a rather out-of-date account of the traditional vicarious liability
doctrine with very poor analysis of the relationships that give rise to vicarious
liability and very little account of the 2012 case that was the subject of the question.
Question 3
Mars is employed as a sceneshifter at the studio of Orbital Films Ltd. He
decided to move a tower structure from one part of the studio to another
without dismantling it. He knew that this was contrary to the Film Sets
(Construction and Use) Regulations 2007 made under statutory authority. As
he moved it, the tower began to topple and then crashed. Castor and Pollux
are freelance stuntmen who were working that day at Orbitals studio. They
had worked together for many years on dangerous stunts and had developed
a complete trust in each other. At the time the tower fell Pollux was standing
some distance away but could see the tower collapse towards the place
where Castor was standing. He could not see exactly what was happening.
The tower had a lattice structure and amazingly it collapsed in such a way
that Castor was trapped uninjured, although he fainted and was completely
hidden from view. He was discovered and released when the structure was
lifted two hours after it fell. In the meantime, Ariadne, a receptionist at the
studio, phoned Castors contact number and spoke to his granddaughter,
Selene. She told Selene, Your granddads in a bad way. Get your mum to
come to the studio as fast as she can.
Castor, Pollux and Selene have all suffered recognised psychiatric illnesses.
Advise them.
General remarks
There are three claimants all suffering from recognised psychiatric damage. All
three of them might seek to establish liability on Orbital Films Ltd for the acts of their
employee Mars, who may have committed the tort of breach of statutory duty or that
of negligence. The three claimants require consideration of different aspects of the
topic of psychiatric damage. In addition Selene might have a differently structured
claim against Orbital Films Ltd based on vicarious liability for the possible
negligence of Ariadne.
Law cases, reports and other references the Examiners would expect you to
use
An illustrative case on breach of statutory duty. Alcock v Chief Constable of South
Yorkshire Police and subsequent cases on psychiatric damage including cases
such as AB v Tameside.

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Common errors
The most common error was in relation to Selene. She is a secondary victim if the
tortfeasor being considered is Mars, but not if the tortfeasor being considered is
Ariadne. Many candidates amalgamated the two claims. Another common error lay
in the definition of secondary victim. Alcock provides that certain close relatives are
presumed to be in a relationship of love and affection. It does not say that they are
the only people who can sue as secondary victims. Others can do so if they can
prove that they did in fact have a sufficient relationship of love and affection.
A good answer to this question would
have briefly explored breach of statutory duty. Was the duty imposed only for the
protection of employees in the work place, thereby excluding Castor and Pollux
from its protection? If so, Mars is quite likely to be held negligent. Castor would be
treated as a primary victim: although he was not in fact physically injured, he must
have feared for his own safety as the structure was falling towards him. Pollux was
too far away to be in danger himself and could only be a secondary victim. He
would seem to satisfy the requirements of proximity and perception by his own
senses and might be able to prove that he had the necessary close relationship to
Castor although he was not a relative. Selene is not strictly within the Alcock
categories but might well show a close relationship with her grandfather: her more
serious problem as a secondary victim is that she does not appear to have
observed the accident or even its aftermath. As an alternative she might try to argue
that Ariadne gave the information in an unnecessarily insensitive way that caused
her distress. There has been some discussion of this in case law and in the
literature but there is no conclusive decision.
Poor answers to this question
committed some of the errors identified above. They also often spent time
discussing the film companys liability as occupiers, but it is impossible to argue that
the accident was the result even in the loosest sense of a danger arising from the
state of the premises. Also some answers spent too long on vicarious liability. Since
Mars is stated to be an employee and Ariadne is implicitly an employee and they
are certainly in the course of employment, there is no need for more than a single
sentence saying so.
Question 4
Frances is aged 80 and increasingly frail. Her daughter, Gwen, got in touch
with the local council. At a case conference the social services department
decided that Frances could continue to live at home but provided her with an
alarm to wear round her neck and pull to summon help if needed. Frances
however sometimes got confused and pulled the alarm by mistake.
One day Hettie, who was on duty in the social services office, saw that
Francess alarm had been activated. She thought that it was probably another
false alarm and ignored it. An hour later it sounded again and Hettie asked
Inge, an unqualified care assistant, to go round to Francess flat. Shortly
afterwards Gwen telephoned and spoke to Hettie, telling her that she (Gwen)
could not make contact with Frances. Hettie told her not to worry as the
situation was now under control.
In the meantime, Inge misunderstood her instructions and went to the wrong
part of town. She phoned for further advice and eventually reached Frances
after two hours. She found that Francess central heating had broken down
and she was suffering from hypothermia. She was taken to hospital but died
the next day.
Advise as to any claims by Francess estate.

LA3001 Law of tort

General remarks
This question was answered by only a small number of candidates and there were
very few good answers. It was primarily concerned with the liability of public
authorities in the exercise of their public law responsibilities. The relevant cases are
mostly drawn from responsibilities towards vulnerable children, but they can be
applied by analogy to the vulnerable elderly.
Law cases, reports and other references the Examiners would expect you to
use
X v Bedfordshire, D v East Berkshire Community NHS Trust and similar cases on
responsibilities of social workers, etc. Barrett v Enfield LBC and other cases on
assumption of responsibility. Cases such as Kent v Griffiths on failures by
emergency services to respond to calls.
A good answer to this question would
have devoted considerable time to the special position of the local council. To what
extent can they be liable in respect of their original decision that Frances could be
looked after in her own home and did not need to be given sheltered
accommodation? (Cf cases leaving children with abusive carers rather than taking
them into the care of the local council.) Alternatively, could Frances estate argue
that there was a breach of her rights under the European Convention on Human
Rights (Article 3) and, if so, what remedy might they get? A substantial proportion of
the answer should have dealt with this. Even if they were not liable for the initial
decision, they had assumed responsibility for her. Had they then broken their duty
towards her by any of these: (i) failing to respond to the first alarm, (ii) sending an
unqualified person, (iii) giving that person unclear instructions, (iv) brushing Gwens
concerns aside? Alternatively, was Inges failure to reach Frances negligent? There
are similarities to Kent v Griffiths but in the problem there had never been an
express undertaking that assistance was on its way.
Poor answers to this question
wholly ignored or gave only brief reference to the special problems in relation to
public authorities such as local councils.
Question 5
Algy took his car to the Do-U-Down Garage for its annual service in March
2013. Until September 2012 he had worked as a sales assistant at the garage
but had left when he had a chance to go touring with a rock group. There is a
notice in the reception area reading: Customers must remain in the reception
area. Cars will be brought to the forecourt by one of our mechanics. It is
possible to access the workshop from a door behind the reception desk. On
that door there is a sign saying: Garage staff only. No unauthorised
admission. When Algy returned to collect his car, he went behind the desk,
chatted to Brenda, the receptionist, and went through the door into the
workshop. His car had been raised on a mechanical ramp and a mechanic,
Chris, was working on it. Chris called Algy over and pointed out problems on
the underside of the car that would soon need attention. At that point the
ramp collapsed and both Algys legs were severed. Algys girlfriend, Delia,
was waiting in the reception area. She heard Algys screams and ran into the
workshop. She slipped on a patch of oil on the floor and fell, causing herself
serious head injuries.

Examiners report 2013

An examination has now shown that a concealed part of the ramp had
become corroded. Do-u-Down Garage had the ramp inspected annually by
Goeasy Ltd, who reported no faults when it carried out an examination in
December 2012. Goeasy Ltd is now out of business.
Advise Algy and Delia as to any claims against Do-U-Down Garage.
General remarks
This problem concerns the liability of occupiers. It is necessary to consider first
whether Algy is or is not a lawful visitor and then to consider the relevant statutory
provisions on each assumption. Then the same process has to be carried out with
Delia.
Common errors
A common mistake was to lose sight of which of the two Acts the candidate was
discussing at any one time. For example, to discuss a provision of the 1957 Act
when they were considering Algys position if he were a trespasser.
Law cases, reports and other references the Examiners would expect you to
use
Occupiers Liability Acts 1957 and 1984 (with particular reference to s.2(4)(b) of the
former and s.1(3) of the latter. Illustrative cases in relation to the Acts and to the
position of rescuers.
A good answer to this question would
have carefully considered the position of Algy. On the face of it he is a trespasser
when he enters the workshop despite the notice. But he can probably argue that he
was a lawful visitor on the basis (a) (doubtful) that he was an ex-employee and
therefore used to entering the workshop or (b) that his entry was in fact authorised
by Brenda or, more plausibly, by Chris. If so, then the elements of the 1957 Act
must be considered, particularly the argument that, if the state of the ramp was a
danger, the occupiers had discharged their duty by employing independent
contractors, Goeasy Ltd. If he were a trespasser, his presence was certainly known
but did the occupiers know or have means of knowledge of the danger and had they
taken reasonable care of his safety. The danger that came to pass for Delia was not
the ramp, but the patch of oil. Is a patch of oil on the floor of a garage workshop a
danger that suggests negligence? Was Delia as a rescuer of her boyfriend a lawful
visitor?
Poor answers to this question
demonstrated a number of problems. One is mentioned under common mistakes.
Another was to spend a lot of time discussing possible negligence of Chris but
how was he negligent in inviting Algy to inspect his car? He had presumably no
knowledge of any danger since he had been working under it. Another was a
muddle about the significance of the notice (see the extract and commentary
below).
Student extract
Furthermore s 2(4) (a) deals with the issue of warning (Roles v Nathan).
Although warnings were written there on notice board but the question arise
that can such warnings be treated as sufficient to exclude liability. But point is
warnings are never meant to exclude liability but to limit the liability.
Furthermore warning was for not entering into premises which was most
probably impliedly granted by the staff. Therefore Du-u-Down whose
employee is staff may be held vicariously liable for the negligence of
employees.

LA3001 Law of tort

Comment on extract
This is a very weak answer. First, it is not easy to follow the argument. Second, it
seems to confuse three things in relation to the notices. The notice here has only
one purpose, namely to make it clear that entry is forbidden, and that anyone who
enters the workshop is a trespasser. It does not purport to give any warning of any
danger at all, let alone the relevant danger the state of the ramp. It does not
attempt to exclude liability at all, but merely to ensure that an unauthorised entrants
rights are those arising under the 1984 rather than the 1957 Act. In any case,
although as stated a warning does not attempt to exclude liability, it does not limit
liability either. On the contrary it attempts to ensure performance of the occupiers
duty by enabling the visitor to avoid the danger and be reasonably safe. (This
confusion about the significance of the notice was present in a great many answers,
which referred to the notice as a warning notice: see the discussion in the subject
guide at Section 6.2.b and associated feedback.)
Question 6
Explain what is meant by pure economic loss and critically examine the
circumstances in which English law allows recovery for negligently inflicted
pure economic loss.
General remarks
This requires a brief definition of pure economic loss (with the focus on pure) as
opposed to consequential loss. Candidates should then focus on situations where it
may be recoverable, including negligent mis-statements, the extended Hedley
Byrne principle, the notion of assumption of responsibility and its relation to the
Caparo v Dickman principles. They should include some illustrative examples.
Ideally they should also include some critical commentary as to whether the law as
stated is coherent.
Law cases, reports and other references the Examiners would expect you to
use
The principal cases would be Spartan Steel v Martin, Hedley Byrne v Heller, White
v Jones, Henderson v Merrett Syndicates, Commissioners of Customs and Excise v
Barclays Bank.
Common errors
A common error was to ignore the first part of the question or to give a rather
garbled account. Pure economic loss is economic loss that does not arise from
physical damage to the claimants own person or property. It arises either without
physical damage to person or property at all or from damage to the person or
property of someone other than the claimant.
Question 7
Phoebe is one of ten general medical practitioners who practise at a surgery
in Bodkin Street in Slumtown. A number of relatives contacted Rachel, the
medical correspondent of the local newspaper, the Slumtown Gazette, with
concerns about the deaths of patients at the surgery. Rachel investigated the
matter. She did not directly contact the practice, but did speak to the local
National Health Service trust. A spokeswoman for the trust told her that they
had no particular reason to be suspicious of the quality of care offered by the
Bodkin Street practice. Rachel wrote an article published in the Slumtown
Gazette in which she said that there appeared to be shortcomings in the care
offered at Bodkin and that the NHS Trust had not been able to offer
reassurance. The Slumtown Gazette is one of a syndicate of local newspapers
and a version of Rachels article appears in some other local newspapers.

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Shane was convinced that his mother had died as the result of the treatment
she had received at the practice. She had left Phoebe a small legacy in her
will. He had a number of leaflets printed reading: Bodkin Street Surgery. If
you want the real Bodkin treatment, go to Bodkin Street and you will never
look back. [Dr Bodkin Adams was a doctor who was acquitted in 1957 of the
murder of a patient. A number of patients had died and had left legacies to
him.] He left a number of these leaflets among other material on a display
desk at the Slumtown Citizens Advice Bureau. The display desk is checked
every three weeks. When Shanes leaflets were found, they were removed. It
is not known how long they were there or whether anyone had read them.
Advise Phoebe as to any claims in defamation.
General remarks
Candidates were advised beforehand to answer on the assumption either that the
Defamation Act 2013 was in force or that it was not in force. Most preferred to
answer on the latter basis, but there were a few excellent answers on the basis of
the 2013 Act that showed a good understanding and included references to
commentaries on the Act about how it might be interpreted. In any case a number
of issues raised by the problem would be answered in the same way whether the
Act was in force or not.
Law cases, reports and other references the Examiners would expect you to
use
Defamation Act 2013 (if relied on), Defamation Act 1996 s.1. Knupfer v London
Express Newspaper Co, Reynolds v Times Newspapers and subsequent cases.
Byrne v Deane.
Common errors
The commonest error was to consider an action by Dr Bodkin Adams. The
instructions clearly said to advise Phoebe and nobody else. (Dr Bodkin Adams in
fact died in 1983 at the age of 84 and could not sue. His case R v Adams is
reported at [1957] Crim LR 365. Candidates were of course not expected to
remember that.)
A good answer to this question would
have concentrated in relation to the first claim on reference to the claimant (group
libel) and on available defences, particularly fair comment or honest opinion and
Reynolds privilege or their replacements under the 2013 Act. The observation about
shortcomings appears at first sight to be a statement of fact but, if Rachel had
referred in her article to statistics about deaths, it could be treated as a comment on
those facts. See the Student extract below on the other defences. An excellent
answer might consider whether publishers of the other local newspapers could also
rely on the Reynolds (or statutory) defence. In the second claim the issue of group
libel arises again (but Phoebe might be more easily identified here because she had
received a legacy from a deceased patient), but a greater problem is whether the
words are defamatory. The essence is captured very neatly in the Student extract
below. Would it be necessary to prove that readers of the leaflet knew about Dr
Bodkin Adams already or is it enough that readers could easily identify the
reference through the internet? Also the words are ambiguous: do they mean that
you will never look back because you will be dead or because you will never be ill
again? The liability of the CAB as publishers must also be explored. What steps
should they take to check on and if necessary remove literature that is put on their
display desk by outsiders?
Poor answers to this question
The commonest failing was to concentrate only on the liability of Rachel and of
Shane. This was not in itself wrong but led candidates to ignore certain issues. In

LA3001 Law of tort

practice Phoebe would want to sue the newspapers and the CAB as being more
likely to have resources to meet the claims. Both the Slumtown Gazette and other
local newspapers are publishers of her article: the CAB likewise could be publishers
(see Byrne v Deane) but might have a defence. Other poor answers spent too much
time on matters that could not be in dispute (e.g. whether Rachels article was
defamatory and whether it was published).
Student extract
This candidate chose to write on the assumption that the 2013 Act was in force at
the time. The answer stated in respect of the claim against Rachel:
Rs most powerful defence lies in s4 DA 2013 responsible publication on a
matter of public interest replacing the common law Reynolds defence. S
4(1) states that it is a defence if R reasonably believes that the statement
published is a matter of public interest. Public interest is not defined in DA
2013 to allow judicial flexibility. Insight can be drawn from London Artists v
Littler whereby Lord Denning said that such a matter was one which the
public would have a legitimate interest to know. It is submitted that the quality
of medical service should satisfy this requirement.
The candidate then refers to something which they had read in academic
discussion that s.4 might be easier to satisfy than Reynolds, discusses s.4(2)
(comparing Lord Nicholls in Reynolds) and discusses what the relevant
circumstances might be. The same candidate in dealing with the claim arising out of
the leaflet wrote:
Ss leaflet is an innuendo as per Cassidy v Daily Mirror in the sense that
people with background knowledge would see the sting in the statement. S
was suggesting that, like Dr Bodkin, P had murderous tendency on her
patients for legacies.
Comment on extract
These are very clearly expressed sections from an overall first class answer. The
first quotation is a very good analysis of how s.4 might be used by the courts and
how it might compare to the previous common law. It also showed some familiarity
with public discussion of the new Act. The second quotation identified with great
clarity the issue posed by the leaflet, something which many candidates found very
difficult to deal with.
Question 8
Warhorse plc manufactures defence equipment. In order to meet large orders
for weapons from overseas countries (for which it has export licences) it has
recently had to operate its production lines all through the night at its factory.
This is close to a housing estate on the outskirts of Paxtown. One of the
houses is occupied by Felicity and her autistic teenage son, Gus. Gus is very
distressed by the lights and noise from the factory and is hardly able to sleep.
Felicity is unable to work because she cares for Gus, and has enrolled for an
online distance learning degree programme. Warhorses equipment
frequently interferes with the reception and transmission from her computer.
A group of pacifist protestors has occupied an empty council property
nearby. The council is sympathetic to their objectives and is taking no action
to evict them: indeed it has allowed them to earn some money by installing
equipment to recycle old paper. They receive more paper than they are able to
recycle and a huge quantity of paper is stacked on the property. One very
windy night a large quantity of paper blew away and blocked the drain in
Hildas nearby house. The house was badly flooded.

10

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Discuss any claims in nuisance or under the rule in Rylands v Fletcher.

General remarks
The first claim is primarily concerned with private nuisance with particular reference
to entitlement to sue, special sensitivity and possible relevance of a public interest,
and with the appropriate remedy. Some reference may also be made to public
nuisance. The second claim might give rise to an action in Rylands v Fletcher and
perhaps also in private nuisance. The possible liability of the council which has
tolerated the protestors presence on its land and has provided the paper for
recycling must also be considered.
Law cases, reports and other references the Examiners would expect you to
use
Illustrative cases on private nuisance particularly the Canary Wharf case and other
cases discussing entitlement to sue and the ECHR. Cases on liability of landlords in
private nuisance or in Rylands v Fletcher.
Common errors
Most of these were errors of omission. First, although most candidates considered
whether Felicity had a sufficient interest in property, they did not consider the
trickier question of Guss possible claim. Second, most candidates failed to consider
what Felicity might want by way of remedy. In particular, what about an injunction to
restrict the period for which, and the time of day at which, the company carried out
its work? Finally there was some confusion about forseeability in relation to
Rylands. It seems to be the law that there does not have to be foresight of the
escape, but that only foreseeable damage is recoverable.
A good answer to this question would
have concentrated on issues mentioned in the introduction. Perhaps the most
difficult aspect was the rights of the child and the possible impact of the Human
Rights Act 1998. Some answers dealt with this very well, referring, for example, to
Dobson v Thames Water Utilities and McKenna v British Aluminium. A relevant
consideration is that if Felicity can get an injunction (e.g. restricting overnight
operations) that outcome will benefit Gus without his having to have a separate
entitlement to sue.
Poor answers to this question
tended to give an overall summary of the whole of private nuisance rather than
concentrating on aspects relevant to the particular problem.

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