Examiners discuss key issues and common mistakes in tort law exam

Examiners’ reports 2017
LA2001 Tort law – Zone A
Introduction
Overall, candidates demonstrated a good knowledge of legal principles and
competence in terms of application of those principles to hypothetical scenarios and
discursive/critical essay questions. The addition of the compulsory essay question
(part A) – now in its second year – has been extremely positive in terms of enabling
students to develop research and critical evaluation skills. As the comments on
specific questions will illustrate, more attention needs to be focused on:
(a) Essay writing
(b) The evaluative elements of the compulsory essay
(c) Problem questions that raise several discrete legal issues.
Comments on specific questions
PART A
Question 1
Candidates must answer this COMPULSORY question about the article N J
McBride, ‘Michael and the future of tort law’ (2016) 32(1) Journal of
Professional Negligence.
a) What do you understand to be the distinction between what the
author describes as the ‘uniform’ and ‘policy’ approach to
determining whether a public body owes a duty of care to an
individual harmed by a third party?
b) Why does the author claim that the basis of the decision in the
House of Lords case of Hill v Chief Constable of West Yorkshire
(1988) has been misunderstood in subsequent cases and in
academic case commentary?
c) Why do you think the UKSC struck out the claim in the case of
Michael insofar as it related to the common law of negligence but
allowed the claim under Article 2 of the ECHR to proceed?
d) What do you consider to be the author’s primary contribution to our
understanding of the duty of care concept in this article?
General remarks
a) The information for this part is contained on p.2 and between pp.4–8.
Candidate responses to this part were strong – with most candidates
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grasping the point that the uniform approach makes no distinction between
duties of public bodies and those placed on private persons.
b) The information for this part is mainly found on pp.3 and 4. Candidates did
not consistently provide correct answers to this part. While most understood
that the author claims that the legal basis of the Hill decision has been
misunderstood, many failed to grasp the significance of the author’s
argument regarding Lord Keith’s judgment. The Zone B Examiners’ report
contains a student extract, indicating how this part ought to have been
addressed.
c) The information for this part is mainly to be found between pp.8–11. This
section of the article contained the most challenging arguments – being
philosophical in orientation. Examiners correctly took account of these
challenges when marking this part. Candidates, in general, tackled this part
well – most demonstrating understanding of the distinction between private
rights and public duties.
d) See common errors (below) and student extract/comments on extract.
Law cases, reports and other references the examiners would expect you to use
No references beyond the article were required.
Common errors
Common errors tended to occur in relation to part (d), and were indicative of a need
for greater attention in the module guide and supporting materials to critical
evaluative skills. Examiners were advised to expect different approaches to this part
and were advised to mark answers in an expansive spirit. Nevertheless, too many
answers were either repetitive of later answers or purely descriptive. Only a minority
of answers convincingly summarised what was distinctive about the author’s
contribution – as per the student extract, below.
A good answer to this question would…
relate the uniform approach to the pure omissions rule.
Perceive the connection between the policy approach and the just, fair and
reasonable limb of the Caparo test.
Demonstrate understanding that both the uniform and policy approach allow judges
to take account of questions of public policy.
Understand the relevance of the author’s argument regarding Lord Keith’s judgment
in Hill.
Demonstrate an understanding of the distinction between private rights and public
duties.
Understand the relevance of human rights principles to the case (HRA claim).
Provide at least one compelling reason for saying that the article makes an
important contribution to the understanding of tort law.
Demonstrate good preparation of the compulsory article.
Poor answers to this question…
demonstrated a poor reading of the article.
Failed to grasp the distinction between the uniform and policy approach.
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Student extract
(d) The author wants to sort out several points:
First, as mentioned above, he makes clear that Hill was based on the uniform
approach.
Secondly, the author looks at the prospect of Michael, and then to evaluate
how Michael is going to be applied in the future, considering the event that
the HRA might be abolished.
In setting out three different lines of argument…
McBride then shows where the (common) law would be if the HRA would go.
Comments on extract…
Although the extract suffers through careless expression, the candidate neatly
summarises complex arguments and, more significantly, has a sufficient grasp of
the duty concept to be able to understand how important the author’s insights are –
most particularly in the way the author encourages a radical reappraisal of Hill. The
latter part of the extract reveals that the candidate is acutely aware of the author’s
view that Michael potentially paves the way toward a radical shift in the approach to
the duty of care.
PART B
Question 2
Tessa and Sasha are identical twin sisters, aged 28. As well as looking
exactly alike, they dress and act alike. They went to the same school and
studied at the same university. Only their career paths differed: Tessa is a
journalist, covering celebrity news on a well-known daily newspaper and
Sasha works as an academic in a University law school. The sisters approach
you for advice in relation to three issues:
a) One of Sasha’s colleagues published a highly condemnatory article
in an academic journal about the falling standards in Law Schools.
In the article he states that Sasha has ‘neglected the library for the
embarrassing pursuit of the company of celebrities’. This comment
was based on a number of newspaper and television reports in
which Tessa was featured. The author of the academic article had
mistaken Sasha for Tessa.
b) Tessa published pictures on her personal internet blog of a person
she thought was the high profile model, Denz, entering a drug
rehabilitation centre. In fact, the person she thought was Denz was
employed as a cleaner at the centre and bore only a superficial
resemblance to Denz.
c) Tessa’s newspaper published her widely read and damning article
about high expense claims made by senior executives employed at
the Cosby Housing Department. It appears that the claims are
without foundation. Uriah, one of the senior executives at Crosby
Housing Department, is very annoyed about this and it has caused
him serious embarrassment.
Discuss the issues arising, taking into account any defences that might be
advanced.
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General remarks
This defamation problem question was designed to test candidates’ knowledge of,
and ability to apply, principles governing liability, derived from the Defamation Act
2013. This was not a popular question but answers were generally competent.
Module guide, Chapters 19 and 20.
Defamation Act 2013, ss.1(1), 3, 4, 5 and 6.
Hulton & Co v Jones (1910).
Sim v Stretch (1936).
Derbyshire CC v Times Newspapers Ltd (1993).
Tamiz v Google Inc (2013).
Cooke v MGN Ltd (2014) (QB).
Common errors
Failure to apply the serious harm test.
assess Sasha’s claim against s.1(1) of the Defamation Act 2013 – referencing
relevant authority on whether the threshold requirement has been met, such as
Cooke v MGN Ltd (2014).
Apply the section 6 defence of qualified privilege relating to material in scientific or
academic journals to a responsible peer review?
Assess Denz’s position against s.5 of the Defamation Act 2013 and cases relating
to internet publishing, such as Tamiz v Google Inc (2013) – noting that there is
unlikely to be a dispute on the question of whether Tessa is the primary or
secondary publisher.
Note that Denz may take action to remove the defamatory statement from the public
domain.
Note that the Cosby Housing Department may be able to claim that the general
principle established in Derbyshire CC v Times Newspapers Ltd (1993) does not
preclude individual councillors or Members of Parliament from taking legal action.
Credit was given to answers that noted that, although the question is not about
privacy, case law on confidential information indicate that a public interest defence
is unlikely to succeed.
tended to be weak on the issue of defences.
Question 3
‘The operation of the Occupiers’ Liability Acts of 1957 and 1984 depends on
the claimant being able to establish a breach to the occupiers’ duty of care.’
Discuss.
General remarks
The question is couched intentionally in broad terms but students would be
expected to show some knowledge of recent cases in which the courts have
established that the occupancy duty is premised on the finding of an objectively
dangerous state of premises. Issues relating to children, skilled visitors and
independent contractors would all provide a sound basis for a competent answer.
4
Module guide, Chapter 16.
OLAs 1957 and 1984.
Glasgow Corporation v Muir (1943).
Ogwo v Taylor (1988).
Staples v West Dorset (1995).
Jolley v Sutton London Borough Council (2000).
Tomlinson v Congleton (2003).
G4S Care and Justice Services (UK) Ltd v Manley (2016).
Edwards v Sutton LBC (2016).
Common errors
As is too often the case with essay questions on occupiers’ liability, there was a
tendency to produce broad and indiscriminate answers. – often with over-reliance
on the text of the statues and insufficient illustrative case law.
distinguish the content of the duty as between the 1957 and 1984 Acts, drawing on
for example, Tomlinson v Congleton Borough Council (2003).
Focus upon cases such as G4S Care and Justice Services (UK) Ltd v Manley
(2016) and Edwards v Sutton LBC (2016) – both featured in the Christmas 2016
blog.
Address the requirement that an occupier should be prepared for children to be
less careful than adults – noting that it is not a mechanical rule applied every time
the claimant happens to be a child – Glasgow Corporation v Muir (1943); Jolley v
Sutton London Borough Council (2000).
Address rules relating to skilled visitors, e.g. Ogwo v Taylor (1988).
Note that there is no duty to warn of obvious risks, e.g. Staples v West Dorset
(1995).
failed to use case law to support analysis of the statutes.
Question 4
‘There is little justification for the distinction drawn between primary and
secondary victims of nervous shock.’
Discuss.
General remarks
This question was an opportunity for students to draw on their knowledge of the
principles in relation to nervous shock/psychological injury to demonstrate
understanding of the nature of actionable damage in tort, which privileges traumatic
physical injury.
Module guide, Chapters 2, 9 and 12.
Law Commission, Liability for Psychiatric Illness.
Alcock v Chief Constable of South Yorkshire Police (1992).
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McLoughlin v O’Brien (1993).
Page v Smith (1995).
AB v Tameside and Glossop Health Authority (1997).
W v Essex County Council (2001).
Galli-Atkinson v Seghal (2003).
A v Essex County Council (2004)
Crystal Taylor v A Novo (UK) Ltd (2013).
Common errors
Limited use made of the Law Commission report and recommendations.
contextualize discussion within debates about the nature of damage in tort law.
Explore cases that problematise the distinction, such as W v Essex County Council
(2001); A v Essex County Council (2004); AB v Tameside and Glossop Health
Authority (1997).
Explain and evaluate the control mechanisms in Alcock v Chief Constable of South
Yorkshire Police (1992), drawing on cases such as McLoughlin v O’Brien and Galli-
Atkinson v Seghal (2003); Crystal Taylor v A Novo (UK) Ltd (2013) to explore the
potential difficulty created by the courts in interpreting proximity of time and space.
Demonstrate knowledge of the Law Commission report and recommendations.
failed to properly explain the distinction between primary and secondary victims,
and the different tests applied.
Student extract
Whilst initially it may appear that the distinction between primary and
secondary victims is arbitrary and unjustified, the distinction is an important
one and one it is critical to maintain. To advance the argument, this essay will
briefly define and contrast primary and secondary victims in case law. It will
then outline the policy devices displayed to discriminate between the two
types of victim and then conclude that the distinction is important to avoid the
floodgates of claims being opened with the associated negative impacts on
insurance costs and public liability.
Comments on extract
The candidate proceeded to deliver as promised, producing a strong upper second-
class level answer. The extract illustrates a clear and sensible structure of argument
and is well written. As the extract indicates, the balance of the candidate’s answer
was on the way public policy considerations are translated into legal rules.
Question 5
Liam has been employed as a physical education teacher for 30 years at the
same school, Perfect Academy. He has always taught pupils between the
ages of 13 and 16. Liam was dismissed from his employment a year ago and
has since been unable to secure employment as a teacher.
The circumstances of his dismissal related to an accusation from a 13 year-
old-boy, Kym, that Liam had punched him during a football training session.
A formal investigation was conducted by an independent Human Resources
consultant, Diego. The report concluded that Liam had punched the boy,
despite Liam’s repeated denials. On the basis of the report, the head teacher
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dismissed Liam. Errors and inaccuracies in the investigation report have

since come to light. The report claimed that the investigator had interviewed
Kym, but this was found to be impossible since Kym was out of the country
and not contactable at the time at which the interview was stated to have
taken place. Further, two pupil witnesses present at the time of the alleged
assault, who could have supported Liam’s account, were not interviewed.
Liam, who had just reached the early retirement threshold of 55 when he was
dismissed, invested 50% of his entire pension in Doonot Industries, after
scrutinising the audited accounts produced by Matt of ABC Accountants.
Significant errors were found in the audited accounts and Liam lost his entire
investment.
Advise Liam on whether he can recover his financial losses in the tort of
negligence.
General remarks
This was a relatively straightforward question on negligence resulting in pure
economic loss. To maximise marks, candidates needed a clear understanding of
the different approaches to cases where the negligent misstatement is made to
the person who suffers from financial loss, in contrast to those cases where the
negligent statement is made to a third party.
Module guide, Chapters 2, 5, 6, 10 and 13.
White v Jones (1995).
Spring v Guardian Assurance Ltd (1995).
Montgomery v Lanarkshire Health Board (2015).
Hedley Byrne v Heller Partners (1964).
Caparo Industries plc v Dickman (1990).
Common errors
A common error was in applying the Bolam test to establish breach of duty in cases
of financial advice.
A good answer to the question would…
note that the claim in respect of the discipline investigation and dismissal falls
within the category of pure economic losses in which the negligent misstatement
is made to someone other than the individual who suffers financial loss (e.g. White
v Jones; Spring v Guardian Assurance Ltd (1995)).
A good answer would deploy the Montgomery v Lanarkshire case, which displaces
Bolam in cases where an allegation of negligence relates to medical or financial
advice.
Note that the claim against the accountant falls within the standard Hedley/Caparo
scenario, and is likely to fail.
Note also that Liam is likely to be challenged to show per Caparo Industries v
Dickman (1990) that Matt Slynn knew that his statement would be communicated to
Malik – either as an individual or as a member of an identifiable class.
applied the Caparo/Hedley test to the entire scenario, neglecting White/Spring. In
general, these answers displayed limited knowledge of case law.
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Question 6
Jenny decided to celebrate her 40th birthday by, for the first time in her life,
joining a local gym, Step Up. The practice in Step Up is to devote the first
session – of one hour duration – to a health check-up, including heart and
blood pressure checks – and a session with one of the personal trainers, who
would demonstrate the equipment and draw up an exercise routine to suit the
gym member.
Jenny was assigned to Magdela, a personal trainer of 15 years’ experience at
a number of well-known gyms. Magdela failed to read up on the Step Up
protocols and so did not conduct the health check. In her defence, Magdela
claimed that gyms do not usually conduct health checks and, therefore, even
if she had known of the Step Up requirements, she would not have
considered it necessary to carry out the health checks.
All seemed to be going well until Jenny suffered agonising pain as a result of
a twisted muscle, caused by pulling onto a weight too quickly and without
engaging the correct posture. Jenny was taken to hospital where she also
developed chest pains. Within an hour of her arrival at the accident and
emergency department of Toddington Hospital, Jenny went into cardiac
arrest (heart attack). It transpired that Jenny had a heart problem which would
have been revealed if the health checks had been performed.
Saviour, the junior doctor in charge, was so anxious to deal with the cardiac
arrest that he completely forgot to deal with the muscle strain problem.
Unfortunately, the muscle injury was more serious than had been thought and
Jenny is now permanently disabled.
Advise Jenny to her rights and liabilities in the tort of negligence.
General remarks
While this is a relatively straightforward question, focusing on breach of duty and
causation, it was not answered as well as I would have expected. This is indicative
of a need to emphasise to students that they require a good general working
knowledge of the tort of negligence.
Caparo Industries plc v Dickman (1990) – for note only.
Bolam v Friern Hospital Management Committee (1957).
Barnet v Chelsea and Kensington Hospital Authority (1969).
Bolitho v City and Hackney AHA (1998).
Wilsher v Essex AHA (1986) CA.
Hotson v East Berkshire AHA (1988) – discounting its application.
Common errors
Many candidates devoted far too much space to the discussion of the duty of care.
as regards breach of duty, note that Magdela would be said to be offering a special
skill and would be brought within the Bolam test. It is likely that breach will be
proved since she neglected a routine health check, which appears to be established
practice in the gym.
Note that causation may prove challenging – the Bolitho (1998) decision may well
yield a conclusion that the harm would have been caused anyway.
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Note that the intervention of the medical team is unlikely to constitute a nova causa,
since intervening medical advice would have to be desperately careless.
Note that Bolam applies, as confirmed by Wilsher – in the context of a junior doctor.
Note that although we do not know whether earlier diagnosis would have prevented
the disability, loss of chance (Hotson) will not be available and Jenny will have to
establish on the balance of probabilities that the disability would have been avoided
by proper diagnosis.
Consider contributory negligence, since we are advised that Jenny did not adopt the
correct posture when pulling at the weights.
tended to spend too much time on duty, to cope reasonably well with breach but
demonstrated weaknesses in terms of understanding the principles of causation. In
short, poor answers indicated a weak overall knowledge of principles of negligence.
Question 7
Evaluate the approach of the courts in resolving conflict over competing uses
of land in private nuisance.
General remarks
This is a relatively straightforward question, which requires students to address the
frequently advanced justifications for balancing private interests against commercial
interests and in resolving disputes between neighbours.
Rylands v Fletcher (1868).
Robinson v Kilvert (1889).
Malone v Laskey (1907).
Mackinnon Industries v Walker (1951).
Halsey v Esso Petroleum Co Ltd (1961).
Miller v Jackson (1977).
Adams v Ursell (1913).
Christie v Davey (1893).
St Helen’s Smelting Co v Tipping (1865).
Shelfer v City of London Electric Lighting Co (1895).
Khorasandjian v Bush (1993).
Hunter v Canary Wharf Ltd (1997).
Coventry v Lawrence (2014).
Common errors
A common error was to write a general account of the tort of nuisance.
examine, critically, a selection of the following issues:
 Locality, Sturges v Bridgman (1879)
 Abnormal sensitivity, Robinson v Kilvert (1889); Mackinnon Industries v
Walker (1951); Halsey v Esso Petroleum Co Ltd (1961)
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 Utility of D’s conduct, Miller v Jackson (1977); Adams v Ursell (1913)
 Malice, Christie v Davey (1893)
 Damage to property/amenity damage, St Helen’s Smelting Co v Tipping
(1865).
A good answer would also explore how discretionary remedies are deployed,
drawing on, for example Shelfer v City of London Electric Lighting Co (1895);
Coventry v Lawrence (2014).
Credit would be given for discussion of cases that explore the justifications for
limiting the scope of persons able to sue in private nuisance – as per Malone v
Laskey (1907); Khorasandjian v Bush (1993); Hunter v Canary Wharf Ltd (1997).
demonstrated limited knowledge of the case law.
Question 8
Jo is a senior consultant in Easyjobs, a recruitment consultancy. All senior
consultants have sole occupancy offices and Jo was lucky to have secured a
large office on the ground floor, leading into a large paved courtyard.
Easyjobs had a strict policy against its consultants bringing ‘guests’ into
offices. Jo had arranged a meeting with one of the firm’s most lucrative
clients, David, who had flown over from New York especially for the meeting
at which it was expected that Jo would secure a one million pound contract.
Unfortunately, Jo’s dog sitter was unwell on the day in question and Jo was
unable to find anyone to care for her dog (Bob) whose aggressive behaviour
demanded close attention. At her wits end, Jo decided to bring Bob into the
office, with the intention of keeping him in the paved area during her meeting
with David. The meeting was progressing very well indeed when David caught
a glimpse of Bob. Being very fond of dogs, David rushed to the patio door and
opened it, whereupon Bob leapt on to David, pushing him over toward a
heavy glass table on which he struck his head and died instantly.
Advise David’s Estate in respect of a claim against Easyjobs.
General remarks
This question required students to address employee status as well as course of
employment – the question was relatively evenly balanced between these two
elements of vicarious liability.
Module guide, Chapter 4.
Ready Mixed Concrete v Minister of Pensions (1968).
Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942).
Lister v Hesley Hall (2001).
Limpus v London General Omnibus Co (1862).
Rose v Plenty (1976).
Common errors
Although students were not expected to dwell on the nature of the tort, a common
error was to neglect mention of this requirement. Also, a significant minority
neglected discussion of employee status.
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note that the question is not clear on the issue of employee status – Jo is a
consultant – the issue should be discussed in the context of the Ready Mixed
Concrete case, since it is unlikely that the notion of relationship akin to employment
will apply to anything as conventional as a consultancy.
Note that the only relevant tort here is negligence and address the core
requirements – albeit briefly – with a focus on breach of duty – noting that the steps
Jo took to protect David from the risk of harm created by a dog known to be
aggressive appear to be less than adequate.
Demonstrate understanding of the Lister ‘close connection’ test. The key issue
here concerns expressly prohibited acts: does the situation fall within Limpus v
London General Omnibus Co (1862) or Rose v Plenty (1976)?
were weak on the application of the Lister test.
Question 9
Two years ago, while crossing at a pedestrian crossing, Vijay suffered
serious head injuries after he was knocked down by a learner driver, Mick.
Mick, who was on his very first driving lesson, panicked when approaching
the red light at the pedestrian crossing and failed to stop. Vijay’s physical
symptoms quickly healed but he suffered a startling change of personality –
transforming from a mild mannered individual into a very aggressive
character, who was always getting into fights at pubs and various sporting
events. Following one serious incident when he caused grievous bodily harm
to Norma, a waitress who refused to serve Vijay after he swore at her, Vijay
was imprisoned for 10 months. Vijay was housed in a cell with Trent, who had
been imprisoned for a similar term for racially motivated assaults. As a result
of Trent’s constant racial taunts, Vijay suffered severe anxiety and
depression. The prison authorities knew of the problems but were
experimenting with a new practice in which they attempted to address racism
through forcing prisoners such as Vijay and Trent to live in close intimacy.
Unable to cope, Vijay attempted to hang himself with the prison bed sheets.
He was rescued but is now so severely brain damaged that he requires 24-
hour nursing care.
Discuss the issues arising.
General remarks
The question focuses on breach of duty and remoteness of damage. This was not a
popular question but candidate responses were competent.
The Wagon Mound (No.1) (1961).
Hughes v Lord Advocate (1963).
Nettleship v Weston (1971).
Kirkham v Chief Constable of Greater Manchester (1990).
Reeves v Commissioner of Police of the Metropolis (2000).
Jolley v Sutton London Borough (2000).
Corr v IBC Vehicles (2008).
11
Common errors
A common error was the lack of balance between the various components of the
question – in particular, too much space was devoted to the duty of care.
A good answer would:
note that Mick will be judged on the Nettleship v Weston (1971) test – students will
note the similarity between the precedent case and the hypothetical scenario.
Note that there appears to be but for causation, but the issue of the personality
change requires discussion of remoteness. While the facts are inconclusive, a
student who raises the thin skull rule would be given credit.
Discuss ordinary principles of remoteness (Vijay’s damage of a foreseeable type?
The Wagon Mound (No.1) (1961); Hughes v Lord Advocate (1963); Jolley v Sutton
London Borough) but note that there is also a public policy question around injury
that results in the commission of criminal acts; public policy would suggest that the
criminal acts are treated as new and independent (Corr v IBC Vehicles (2008)).
On suicide, apply the decisions in Reeves v Commissioner of Police of the
Metropolis (2000); Kirkham v Chief Constable of Greater Manchester (1990), which
would indicate that the prison authorities were under a duty to guard against the
very harm that Vijay eventually suffered while in custody.
demonstrated a weak appreciation of case law on remoteness and spent undue
time on the duty of care.
Student extract
The first question is whether Vijay has any cause of action against M. In
order to establish liability in the tort of negligence a duty of care, breach of
that duty and causation must be established. Precedent shows that road
users owe a duty of care to other road users, hence M owed V a duty of care.
It is questionable whether there was a breach of this duty. The applicable
standard of care has to be established. In Glasgow v Muir the court set out
that an objective approach is to be applied. The question whether M can
argue that as a learner driver he owes a lower standard of care to other road
users has been answered negatively. According to Lord Denning in
Nettleship v Weston, a learner driver…
Comments on extract
The extract is indicative of a candidate who has a very good working understand of
each element of the negligence matrix. Few answers dealt as competently with the
duty question. The candidate’s judgment as to the relative weight of the various
issues was very sound – with most attention being given to remoteness. The
answer was throughout as carefully structured as the extract indicates.
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Examiners’ reports 2017

Examiners’ reports 2017

LA2001 Tort law – Zone A

Comments on specific questions

dismissed Liam. Errors and inaccuracies in the investigation report have

A good answer to this question would…

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