Tort Report 2016 A

Examiners’ reports 2016
LA2001 Tort law – Zone A
Introduction
Students adapted well to the changes to the tort examination which came into effect
this year. The compulsory article question enabled students to demonstrate
competence in advanced level research in the area of nuisance and several
candidates were able to demonstrate a very good level of competence at critical
reasoning.
There was a good spread of answers across the questions in Part B, with the
questions on psychiatric injury and vicarious liability being the most popular. The
weakest answers tended to relate to essay-style questions, with the response to the
question on the duty of care being the most disappointing. There is a tendency still
to confuse the duty concept with breach of duty. Students also struggle to relate the
just, fair and reasonable concept to human rights doctrine.
Comments on specific questions
PART A
Question 1
Parts (a) to (d) of Question 1 are about the article Maria Lee (2015). The public
interest in private nuisance: collectives and communities in tort. Cambridge
Law Journal, 74, pp.329–358.
1.
a) Outline the key public interests issues in Coventry v Lawrence
(2014).
b) ‘The key compromise between industrial and agrarian [rural]
interests was wrought in private nuisance by distinguishing
between physical harm and amenity harm, and by the application to
the latter of the locality doctrine’ (Lee, p.340).
(i) Explain what this means; and
(ii) discuss how this was applied in St Helens Smelting v Tipping
(1865).
c) (i) How does Lee define ‘collective goods’ or ‘public goods?; and
(ii) why does Lee consider national security to be a ‘genuinely
public good’?
d) According to Lee, how, and why do the courts heavily rely on
regulatory decision making?
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General remarks
The article and questions encourage students to explore public policy issues from
the perspective of the common law of nuisance.
Law cases, reports and other references the examiners would expect you to use
1. St Helen’s Smelting v Tipping (1865) 11 ER 1483.
2. Hunter v Canary Wharf (1997) AC 655.
3. Coventry v Lawrence (2014) UKSC 13.
4. Dennis v Ministry of Defence (2003) EWHC 198.
5. Marcic v Thames Water Utilities Ltd (2003) UKHL 66.
Common errors
1. Failure to answer each part of the question.
2. Weak answers to part (d) caused by lack of understanding of the notion of
regulatory decision making. However, examiners did not unduly penalise
performance, given the complexity of this area of law.
A good answer to this question would…
1. Recognise that although the term ‘public interest’ pervades the judgment in
Coventry v Lawrence there is little exploration – apart from planning
permission – of what the public interest may be.
2. Demonstrate understanding of the intersection between private rights and
public interests.
3. Understand and explain (using original expression), the author’s analysis of
the nature of public interests/public good, such as national security.
4. Understand and explain the significance of St Helen’s Smelting v Tipping in
addressing the competing interests of existing agricultural communities and
advanced industrialisation, using the locality doctrine to create a distinction
between two types of harm (physical harm and amenity harm).
5. Identify examples of regulatory decision-making means.
Poor answers to this question…
1. Tended to focus on a fairly descriptive account of familiar cases, such as St
Helen’s and Coventry.
2. Failed to answer all parts of the question.
3. Demonstrated no, or poor, understanding of the policy context of Lee’s
article.
Student extract
The doctrine of locality made a distinction between physical harm, which is
harm done to tangible property, and amenity harm, which is harm done to the
enjoyment of land. The doctrine dictates that only physical harm is
recoverable, but not amenity harm. As industrial developments move close to
rural areas, it is inevitable that emissions or other pollutions generated from
industrial operations would likely cause harm to rural areas in the vicinity. In
St Helens Smelting and Tipping… Mellon J stated that in areas where
industrial works are operated, individuals cannot insist on strict rights …
Comments on extract
This is a good example of an effective use of case law to explore the broader public
interests that nuisance law doctrine confronts and attempts to resolve. The
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candidate displays a good understanding of the ways and means through which
private rights are limited/compromised in the broader public interest.
PART B
Question 2
The School of Law at Barksby University College was hosting a moot
competition against Sidden Law School. The competition took place in the
Council Chamber. The Council Chamber had recently undergone a thorough
refurbishment by Marksman Designs, a local firm with an established
reputation for refurbishments which observe the original features of listed
buildings. The moot was going well when there was a smell of smoke. The
smoke came from a fire in a room just off the main Chamber, the door to this
room was marked ‘Private No Entry’. Kendra and several other members of
the Barksby Student Union had concealed themselves in the room because
they had planned to disrupt the moot competition as a protest. The fire was
caused by faulty electrical wiring, and was compounded by the fact that the
smoke alarms fitted by Marksman Designs were not properly installed. Worse
was to follow in that the newly replaced fire door was not fitted properly and
failed to open when the audience and moot participators sought to exit. Basil,
a security guard employed by Barksby, used a sledge hammer to break the
door. Unfortunately, Basil caused further injury when the heavy door fell onto
Neil who was closest to the exit, killing him. Most of the student union
protestors were able to leave unscathed, but Kendra (who suffered from
asthma) did not survive.
Advise all parties of their rights and liabilities under the Occupiers’ Liability
Acts.
General remarks
Students were directed to the OLAs and so answers that were disproportionately
directed to common law negligence principles were penalised.
1. Occupiers’ Liability Act 1957, ss.1 and 2.
2. Occupiers’ Liability Act 1984, ss.1–3.
3. Wheat v Lacon & Co Ltd [1966] AC 552.
4. Tomlinson v Congleton Borough Council [2003] UKHL 47.
5. Haseldine v CA Daw & Son Ltd [1941] 2 KB 343.
6. Ferguson v Welsh [1987] 1 WLR 1553.
7. Cunningham v Reading Football Club Ltd [1992] PIQR P141.
Common errors
1. Too much reliance on statute, without supporting case law.
2. A failure to clearly distinguish lawful entrants from trespassers.
3. Failure to distinguish state of premises and activity.
4. Failure to advise on all issues.
1. Demonstrate a good understanding of the liability of occupiers who secure
the services of independent contractors.
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2. Make effective use of the OLAs 1957 and 1984 in distinguishing lawful
entrants from trespassers.
3. Make effective use of Tomlinson (2003) or other authorities on trespass.
4. Understand and apply the distinction between injuries resulting from state
of the premises or activities when assessing Neil’s injury.
5. Demonstrate understanding of the liability of rescuers when assessing
Basil’s actions.
failed to properly illustrate arguments through case law.
Student extract
Haseldine v Daw held that the more technical the task, the more reasonable
for the occupier to contract the work to the contractor. As compared to
Woodward v Hastings, it is expected for the occupier to check the work which
is routine and non-complex. Besides, Gwilliam v West Hertfordshire when the
occupier makes an enquiry about whether the contractor has insurance or
not, in [sic] may be in evidence shown that the occupier has taken
reasonable care to see if the contractor is competent. AMF International
stated that for complex work, the occupier may have a duty to cause the
contractor’s work being supervised by a properly instructed professional.
Comments on extract
The extract shows some errors of grammar and sentence construction but these do
not disguise the strength of the candidate’s performance in terms of his/her use of
authority. Far too many candidates were content to base their analysis purely on
statutory provisions.
Question 3
John was dismissed by Fenton Builders Ltd, for whom he had worked for 20
years, for alleged serious misconduct. He consulted Maple, the daughter of
his best friend. She had just graduated with first class honours in law. She
advised John that he had a strong claim against Fenton Builders. Maple
further advised John that any claim had to be brought within one year. This
advice was incorrect. John had, in fact, only six months within which to bring
a claim against Fenton. After nine months had elapsed, John decided to bring
the claim against Fenton Builders and hired a lawyer (Priya) to pursue the
claim on his behalf. She did not notice that the claim was out of time, and
proceeded to incur £7,000 in costs. The case was eventually dismissed from
the Tribunal, and John had to pay the other side’s costs – also £7,000. It is
now clear that, had the claim been brought in time, John had a strong chance
of winning damages and possibly a claim for re-instatement.
Advise John as to whether he can bring a claim in negligence in respect of
his financial losses against Maple and Priya.
General remarks
The question concerns liability in negligence resulting in pure economic loss.
Students should be penalised if they discuss Fenton’s direct liability: this is not a
Spring v Guardian Assurance type scenario.
Standard of care/Bolam test.
1. Hedley Byrne & Co Ltd v Heller and Partners [1963] UKHL 4.
2. Caparo Industries PLC v Dickman [1990] 2 AC 605.
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3. White v Jones [1995] 2 AC 207.

4. Henderson v Merrett Syndicates [1995] 2 AC 145.
5. The Law Society v KPMG (2000) 4 All ER 540.
6. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Common errors
Failure to address the standard of care via Bolam (1957).
1. Identify that an action against Maple is likely to struggle on the question of
whether it was reasonable for John to rely on her advice.
2. Discuss the relevance of the fact that Maple is not a professional lawyer.
3. Identify that the issue is complicated by the family relationship between
Maple and John.
4. Recognise that the claim against Priya sits more comfortably with
established principles. However, students who use White would not be
unduly penalised provided that the answer demonstrates understanding
that these cases concerned negligent advice that was not conveyed directly
to the person suffering economic loss.
5. Note that on Hedley/Caparo principles, there appears to be sufficient
proximity between John and Priya.
6. Note that Priya might argue that John did not in fact rely on her in respect
of the time limits, but relied on Maple?
7. Both Maple and Priya will have fallen below the standard of competent,
careful practitioners – provided that Maple can be said to have held herself
out as a practitioner – through the act of giving legal advice.
1. Failed to properly distinguish between the use of authorities such as White
against Hedly/Caparo.
2. Failed to advise adequately or at all on the standard of care.
Student extract
According to Bolam v Friern Hospital, when the subject matter of negligence
involves special skills, the standard of care should be the standard of the
reasonable skilled person.
In the present case, we should apply the standard of the reasonable lawyer
when assessing whether Priya has breached her duty of care to John
(Bolam).
As a lawyer, it should be reasonable to check if a claim is time-barred before
proceeding to court. However, Priya failed to do so, which led to John losing
the court case… Priya is liable for the loss to John if the loss is caused by
Priya’s negligence. ‘But for’ test of Barnett v Chelsea and Kensington
Hospital should apply.
Comments on extract
This is a good illustration of an effective use of case law. The extract recognises
that Bolam extends to all professions and skilled undertakings. The candidate
applies legal principles very well to the factual scenario.
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Question 4
‘Despite the Defamation Act 2013 reforms, the tort of defamation remains
unsatisfactory and in further need of reform.’
Discuss.
General remarks
The question was intentionally couched in fairly broad terms – designed to allow
both strong and less confident students to maximise their potential. A pass mark
would require demonstration basic knowledge of the 2013 Act reforms.
ECHR, Article 10.
Human Rights Act 1998, s.12.
Defamation Act 2013:
1. Section 1 (serious harm) and Cooke v MGN Ltd [2014] EWCH 2831;
2. Section 5 and Bussey Law Firm PC and Timothy Raymond Bussey v Page
[2015] EWHC 563;
3. Godfrey v Demon Internet (2001) QB 201
4. McAlpine v Bercow [2013] EWHC 1342;
5. Sections 2 and 3 defences (truth and honest opinion);
6. Section 4 public interest publication in the context of the old Reynolds v
Times Newspaper [2001] 2 AC 127 authority.
Common errors
1. Descriptive answers.
2. Over-reliance on 2013 Act, without supporting authority.
demonstrate familiarity with major reforms, such as the serious harm requirement,
changes in relation to defences and provisions relating to internet operators. Good
answers would also be able to reference case law that clarifies the reforms, such as
Cooke v MGN Ltd (2014) and would address the intersections between domestic
law and human rights.
gave general answers in Defamation, without a focus on 2013 Act reforms.
Question 5
‘Recent decisions in the law of causation have been significantly influenced
by the increasing prevalence of the disease known as Mesothelomia.’
Discuss.
General remarks
The question is very specific in its intention to encourage discussion of case law
developments in the area of causation. An answer that does not identify the
McGhee/Fairchild/Barker line of authority would be difficult to award a pass mark.
1. Fairchild v Glenhaven Funeral Services [2002] UKHL 22.
2. McGhee v National Coal Board [1973] 1 WLR 1.
3. Barker v Corus UK Ltd [2006] AC 572.
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4. Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229.

5. Compensation Act 2006.
6. Barnett v Chelsea and Kensington Hospital Management Committee [1969]
1 QB 428 (for basic statement of but for test).
Common errors
Failure to reference the Compensation Act 2006.
critically evaluate how successful judges have been in addressing some of the
structural ‘problems’ of proving breach/causation.
gave basic and very descriptive account of case law.
Question 6
Humphrey was travelling to work on the top deck of a bus when the bus
swerved violently, crashed into a bus stop and overturned. The bus then
remained tilted precariously to one side. Humphrey was trapped on the upper
deck for some time but he was not physically injured. He has since suffered
from a severe nervous condition – prompted first by the thought of what his
fate might have been – and second by watching one of the people at the bus
stop – a complete stranger to him – slowly dying of her wounds. It emerged
that the collision was caused by the bus driver, Felippe, who fell asleep at the
wheel. Felippe has suffered permanent, life-changing injuries. His daughter,
Chloe, arrived at the hospital where her father was being treated, two hours
after the collision. When she saw her father still covered in dirt and blood she
collapsed. Chloe has now been diagnosed as suffering from post-traumatic
stress disorder. It was pure chance that Malcolm Smith, a police officer called
to the scene, and involved in the rescue of many of the injured, came across
his twin brother, Salcome Smith. Salcome had been standing on the opposite
side of the road when the crash happened but was so shocked at what he saw
that he suffered an immediate heart attack. When Malcolm Smith found his
brother he was close to death. Malcolm held Salcome in his arms as he died.
Malcolm has since been unable to continue work as a police officer due to the
distress caused by his brother’s death.
Advise the parties as to their rights and liabilities in the tort of negligence.
General remarks
This is a fairly straightforward question on negligence resulting in psychiatric injury.
1. Greatorex v Greatorex [2000] EWCH 223.
2. White v Chief Constable of South Yorkshire Police [1998] UKHL 45.
3. Page v Smith [1996] 1 AC 155.
4. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
5. McLoughlin v O’Brian (1983) 1 AC 410.
Common errors
Lack of clarity over the distinction between primary and secondary victims.
1. Argue that Humphrey will be assessed as a primary victim – he did not
suffer injury but (since he was trapped) there is evidence to suggest that he
reasonably apprehended physical injury. If he is not a secondary victim, the
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question of whether his psychiatric injury was caused by shock will have
been identified in good answers.
2. Argue that Chloe sits within the aftermath principle, but is likely to have any
claim compromised by the Greatorex principle.
3. Argue that Salcome Smith is a mere bystander.
4. Argue that Malcolm Smith falls outside of White – because of his
relationship to Salcome. However, good answers will also questions
whether Malcolm has suffered a recognised psychiatric condition.
failed to properly apply principles relating to rescuers – in the context of the
secondary victim and bystander categories.
Question 7
‘Human rights principles have played an important role in the development of
the duty of care concept.’
Discuss.
General remarks
Students would be expected to demonstrate a good understanding of the key cases
that have elucidated the relationship between the duty of care principles and human
rights principles.
1. X v Bedfordshire County Council [1995] 2 AC 633.
2. Hill v Chief Constable of West Yorkshire [1989] AC 53.
3. Smith v Chief Constable of Sussex [2008] UKHL 50.
4. Michael v Chief Constable of South Wales Police [2015] UKSC 2.
5. Z and others v UK (2001).
6. ECHR, Articles 2 and 3.
7. Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50.
Common errors
Provided a general account of the duty of care, without specific reference to the
just, fair and reasonable element and the challenges of its application.
1. Display knowledge of most recent case law, including Michael (2015).
2. Demonstrate understanding of relationship between human rights principles
and the just, fair and reasonable element of the duty test.
1. Confused duty of care and breach of duty.
2. Failed to focus on police or local authority cases, where most of the
illustrative examples lie.
Question 8
Vanessa has been working for the Ace taxi company as a driver for six
months. Ace pay Vanessa’s national insurance and tax but she has to
purchase her own car and insurance. She works according to very strict
protocols governing how clients must be treated (this includes a script telling
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her how to greet clients and how her job of taxi driving must be done). On the
day in question, Vanessa had collected Ian, a long term client of Ace, who had
arranged to be driven to the airport to catch an urgent flight. Whilst in the car
Ian began to choke on some nuts that he was eating. Vanessa panicked and
diverted the car from the usual route to the airport into a quiet area – with the
intention of providing first aid. Unfortunately, she collided with another car
whilst doing so. Ian had begun to recover on his own, but Vanessa was
having a serious argument with the other driver, Sally, when she lost her
temper and violently attacked Sally, rendering her unconscious. Ian, now very
alarmed, tried to leave the taxi but Vanessa slammed the door and insisted
(against Ian’s protests) on driving him to the airport. Ian’s hand was caught in
the car door and he suffered a bad injury.
Advise Ace as to their rights and liabilities in respect of Ian’s and Sally’s
injuries.
General remarks
The question concerns vicarious liability, trespass to the person, false imprisonment
and negligence.
1. Nettleship v Weston [1971] 2 QB 691.
2. Various Claimants v Catholic Child Welfare Society and others [2012]
UKSC 56.
3. Lister v Hesley Hall [2001] UKHL 22.
4. Mattis v Pollock [2003] 1 WLR 2158.
5. Rose v Plenty [1976] 1 WLR 14.
6. Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.
Common errors
Weak on the question of deviation from journey and potential false imprisonment.
1. Explore the question of employee status and note that the facts tended to
indicate a quite significant degree of control over how the role of taxi driver
is performed.
2. Argue that this case can be distinguished from others where a deviation in
the standard route has proved fatal.
3. Argue that Nettleship will apply to any assessment of Vanessa’s liability and
her employer’s vicarious liability.
4. Argue that the assault should be assessed in light of the decision in Mattis
and Mohamud v Morrison.
5. Argue that if Vanessa was in the course of employment when she diverted
from her journey to aid Ian, the assault may be considered to be a
continuing act for which her employer will be liable.
6. Argue that the false imprisonment of Ian, and negligent injury to his hand, is
less likely to meet the Lister close connection test.
were weak on the question of deviation from journey and potential false
imprisonment.
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Question 9
The Gascoigne Area Health Authority seeks your advice in respect of claims
in the following circumstances:
a) Felicity, who died from a rare form of food poisoning after the junior
doctor on call at the accident and emergency department did not
attend to examine her. The doctor assumed from the symptoms –
vomiting and weakness – that Felicity had contracted a mild virus,
and simply needed rest and plenty of fluid.
b) Brent, a long term patient undergoing plastic surgery treatment for
scarring during a fire, who claims that he was not advised of the
risk that he might suffer severe depression as a result of a reaction
to drugs used during surgery. Expert evidence indicates that the
risk of depression in such circumstances is 15%.
c) A senior doctor who failed to carry out a standard procedure on
Peter, an ailing elderly male, who eventually died. The doctor
claimed that the alternative procedure he deployed was considered
by several in the medical profession to be a highly effective – albeit
relatively new – form of treatment.
General remarks
Students should demonstrate understanding of the Bolam test and the but for test of
causation in the context of risks.
1. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
2. Barnett v Chelsea and Kensington Hospital Management Committee
(1969).
3. Montgomery v Lanarkshire Health Board [2015] UKSC 1.
4. Chester v Afshar [2004] UKHL 41.
5. Bolitho v City and Hackney Health Authority [1999] AC 232.
Common errors
Failure to answer all three elements of the question.
1. Recognise that this is a fairly straightforward Barnett v Kensington scenario.
2. Examine principles relating to breach, causation and risk arising from
Chester (2004) and Montgomery (2015) in particular.
3. Would explore the Bolitho principle concerning logically defensible standard
practices.
1. Did not cover all elements of the question.
2. Were weak on the question of risk.
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LA2001 Tort law – Zone A

Comments on specific questions

3. White v Jones [1995] 2 AC 207.

4. Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229.

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