Download Subject 11

LEVEL 3 - UNIT 5 – LAW OF TORT
SUGGESTED ANSWERS - JUNE 2011
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2011 examinations. The suggested answers do not for all questions set
out all the points which students may have included in their responses to the
questions. Students will have received credit, where applicable, for other points
not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
1.
Candidates should have identified any two statutory torts such as those
under the Occupiers’ Liability Acts 1957 and 1984, Consumer Protection Act
1987 or Animals Act 1971.
2.
The third aspect of the three-stage test from Caparo v Dickman [1990] is
that it must be just and reasonable to impose a duty of care on the
defendant.
3.
s1 Compensation Act 2006 provides that when deciding whether a
defendant should have taken particular steps to meet a standard of care it
should have regard to whether a requirement to take such steps might:
a. prevent a desirable activity from being undertaken; or
b. discourage persons from undertaking functions in connection
with a desirable activity
4.
A primary victim must be directly involved in the incident and within the
range of foreseeable physical injury liable to be caused by the
defendant’s negligence.
A secondary victim is not directly involved but suffers from seeing or
hearing what happens to another and the psychiatric injury must be
reasonably foreseeable to someone of reasonable fortitude.
A relevant case could be Page v Smith [1995], Walker v Northumberland
CC [12995], Alcock v CC of S Yorkshire [1992] McFarlane v Caledonia
[1995] or Atkinson v Seghal [2003].
5.
The fireman was engaged in a socially desirable objective. Candidates
could have gone on to explain that this was due to such an objective
lowering the standard of care or that the court is required to balance the
potential harm against the utility of the act. However this was not required
for the single mark available.
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6.
Courts have awarded damages for the period between the injury and
the development of the disease. As the claimant would have got the
disease in any event, any award for a later period would overcompensate the claimant and penalise the defendant. A relevant case
could be Jobling v Associated Dairies [1982].
7.
(a) The three tests are the control, organisation and multiple tests.
Recognised alternative names for these tests would be acceptable.
(b) A brief explanation of any one of these tests was required. The
control test is the degree of control exercised by the employer over the
worker; the organisation test is the extent to which the worker is an
integral part of the employer’s undertaking as in Cassidy v Minister of
Health [1951] or Whittaker v Minister of Pensions [1967] and the
multiple test takes into account all the circumstances in which the
person works as in the case of Ready Mixed Concrete (South East) Ltd
v Minister of Pensions [1968].
8.
A typical situation where the courts are likely to find contributory negligence
on the part of as claimant is where a passenger in a car accident is
injured and is not wearing a seatbelt. Any other suitable example could
be used to gain credit.
9.
General damages are not capable of precise calculation/not readily
quantifiable.
SECTION B
Scenario 1
1.
(a) The answer to this part of the question required an explanation of the
three part test for establishing the existence of a duty of care set out in
the case of Caparo v Dickman [1990], not mere identification. It would
need to have shown, for example that a person in the claimant’s
position should have been able to foresee the risk of loss or damage; it
is not just that they could have foreseen the accident. Also, a candidate
should have explained that there must be a relationship between the
parties to establish proximity and that there must be no policy reasons
or it must be just and equitable for a duty of care to be imposed.
Relevant case law could have included, as well as the Caparo case,
Donoghue v Stevenson [1932], Fardon v Harcourt-Rivington [1932],
Bourhill v Young [1943] or Hill v CC of W Yorkshire [1988].
(b) A reasonable man in Bill’s position should have been able to foresee
that if the rope was faulty there was a risk of loss or damage. As Bill
was working on the ferry and Cam was a customer there would appear
to be sufficient proximity between them. There is no policy reason why
liability should not be imposed. A duty of care would therefore appear
to have been owed.
(c)
To establish causation in fact the ‘but for test’ could be applied and,
here, the damage is clearly a direct result of Bill’s actions.
Alternatively, it could be asked whether Bill has ‘materially increased
the risk’ of damage. To establish causation in law there is the test of
remoteness (could the nature or type of injury or loss be foreseeable).
Relevant case law could include Barnett v Chelsea & Kensington HMC
[1968] McGhee v National Coal Board [1973] and The Wagon Mound
(No 1) [1961].
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2.
Under the concept of vicarious liability an employer may be responsible for
the wrongful acts of an employee. Anne is Bill’s employer and it would seem
that Bill has committed the tort of negligence during the course of his
employment. Anne could therefore be held liable for Bill’s tort. A relevant
case could be Limpus v London Omnibus Co (1862).
3.
Although Cam’s illness would not have happened but for Bill’s negligence,
for which Anne will be vicariously liable, the extent of the damage for which
Anne could be held liable is determined by the remoteness of damage test
as set out in The Wagon Mound (No 1) [1961]. Here, it would seem unlikely
that Anne could have been expected to foresee Cam’s illness. However, the
thin-skull rule that a defendant has to take his victim as he finds him might
well apply here. Consider Smith v Leech Brain [1962]. Anne could be
expected to foresee some injury to Cam and under this rule she will
probably be liable for the full extent of his injuries.
4.
Anne could possibly have a defence of consent here if it could be argued
that Cam had accepted the terms of the notice before he boarded the ferry
but in view of the provisions of the Unfair Contract Terms Act (UCTA) 1977
the defence could at most apply to any loss or damage to Cam’s car and
personal belongings only. UCTA 1977 imposes certain restrictions on
exclusion clauses. Section 2 of the Act applies to business situations and is
therefore relevant here. Under s2(1) any clause seeking to exclude or limit
liability for personal injury or death caused by negligence is ineffective and
Anne cannot therefore rely on the notice to exclude liability for Cam’s injury.
Under s2(2) any attempt to exclude liability for other kinds of loss or
damage is subject to the test of reasonableness. Therefore if Anne wishes to
rely on the notice in respect of Cam’s other losses (the car and its contents
and loss of enjoyment of his holiday) under s11(5) Anne would have to
show that the exclusion clause was reasonable.
5.
The general damages which Cam might seek to claim here are loss of
amenity (the loss of enjoyment of his holiday), pain and suffering (due to
cuts to his arm and his illness), loss of future earnings based on his net
income before the accident (the multiplicand) multiplied by a figure (the
multiplier) based on his age and finally, perhaps, a claim for lost years (the
amount Cam might be expected to earn during those years less an
allowance for living expenses).
Scenario 2
1.
(a) A good answer would identify and explain the ‘reasonable man test’
outlined by Baron Alderson in the case of Blyth v Birmingham
Waterworks (1856). It would also explain that the test is objective.
(b) In responding to an emergency call, Ephraim
desirable objective, a potentially harmful act
The court would have to balance potential
quickly against potential utility of doing so.
Watt v Herts CC [1954].
was engaged in a socially
justified by his objective.
harm of not responding
A relevant case could be
(b) A reasonable man in Ephraim’s position should have been able to
foresee the risk of harm from driving at excessive speed. As Ephraim
was driving, he will be judged by the standard of a reasonable driver
with his skill or expertise. Other relevant factors might be that he was
on an emergency call and that this was a socially desirable purpose. A
relevant case could be Nettleship v Weston [1971].
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2.
Generally it is not ‘just and reasonable’ to impose a duty of care on a
statutory authority/public body such as the police authority. However, police
immunity may not be absolute. An appropriate reference could also be made
here to the provisions of s1 Compensation Act 2006. Relevant case law here
could include Hill v CC of W Yorkshire [1998] or Osman v UK [1999].
Application here might be that the police authority is unlikely to owe a duty
of care.
3.
(a) Gina, as a secondary victim, must be able to show a recognised
psychiatric disorder and the normal principles of negligence, such as
breach of duty of care and causation, must be satisfied if she is to be
able to claim successfully. The four tests set out in the case of Alcock v
CC of S Yorkshire [1992] must also be satisfied. That is to say, she
must be able to show:
¾ A close relationship of love and affection with the principal
victim.
¾ The claimant must be physically close in time and distance from
the incident.
¾ The claimant must have witnessed the incident with her own
senses.
¾ The psychiatric harm should be caused by sudden shock.
(b) A good answer here would apply these points to the circumstances
here. It would consider, therefore, whether severe depression is
sufficient. As Gina was not directly involved, she is a secondary victim
and the ‘Alcock tests’ should be considered. There is a close tie of love
and affection presumed as she and Hal are husband and wife, Gina was
100 yards away so there is sufficient proximity (she was at or near the
scene itself) and she saw the car heading towards the tree so she saw
the incident with her own senses. She also appears to have suffered
sudden shock; she fainted. Relevant case law could include Hinz v
Berry [1970] or Alcock v CC of S Yorkshire [1992].
4.
The Limitation Act 1980 imposes time limits for the commencement of
actions. In personal injury cases, the relevant period is three years. The
period commences either on the date of wrongdoing, the date of injury or
the date of knowledge that there is a claim. Gina’s three year period would
therefore appear to commence on the date of the accident and she will
therefore have to commence any action before January 2012.
5.
(a) Special damages are quantifiable losses
(b) The special damages, which Gina could claim are loss of earnings up to
the date of trial. The general damages she could claim are her future
loss of earnings, pain and suffering (her psychological injury), pain and
suffering (head injury) and loss of amenity in respect of her impaired
personal relations.
Scenario 3
1.
(a) The three elements of the tort of negligence are the existence of a duty
of care, a breach of that duty and damage caused thereby.
(b) John should have been able to foresee that if he cornered badly there
was a risk of loss or damage. As John was driving and Indy was
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another driver there is an established duty of care and therefore
proximity and just and reasonableness can be presumed.
Relevant case law could have included Donoghue v Stevenson [1932],
Caparo v Dickman [1990], Fardon v Harcourt-Rivington [1932],
Bourhill v Young [1943] or Hill v CC of W Yorkshire [1988].
(c)
A good answer would identify and apply the reasonable man test for
deciding whether the duty of care owed has been breached - John
should have been able to foresee harm. A relevant case could have
been Blyth v Birmingham Waterworks. Mention could also have been
made of the factors which affect the standard of care owed.
2.
The usual test for the standard of care is the ‘Reasonable man test’. Here,
the ‘Bolam test’ probably applies. A relevant case could therefore be either
Blyth v Birmingham Waterworks (1856) or Bolam v Friern Hospital
Management Committee [1857]. The test is objective and John, as a learner
driver, would be expected to show the standard of care expected of a
reasonably competent driver. A further relevant case could therefore be
Nettleship v Weston [1971].
3.
John could probably use the defence of ex turpi causa non oritur actio (no
legal action can arise from a blameworthy cause). Therefore as Kevin was
involved in an illegal act, having knowingly incited John to drive without
insurance, the defence should be available to John. A relevant case could be
Ashton v Turner [1980].
The partial defence of contributory negligence under the Law Reform
(Contributory Negligence) Act 1943 as Kevin had contributed to his own
injuries. Therefore, even if the full defence of ex turpi causa fails, this partial
defence may also be available to John as Kevin had contributed to his
injuries by not wearing a seatbelt. A relevant case could be Froom v Butcher
[1976].
It might also have been possible to refer to the defence of consent, although
if consent was mentioned it would need to be shown that, in accordance
with s149 Road Traffic Act 1988, it could not apply here as Kevin was a
passenger in a motor vehicle.
4.
(a) Factual causation can be established by using either the ‘but for’ test or
the ‘material increase in risk’ test. The former test (see Barnet v
Chelsea & Kensington HMC [1968]) asks whether the damage would
have occurred but for the breach of duty of the defendant and the
latter test (see McGhee v NCB [1972]) asks whether the defendant
made a material contribution to the damage.
(b) A new intervening act is an act by the claimant, an act of nature or an
act by a third party, which breaks the chain of causation. A relevant
case could be Sayers v Harlow UDC [1958].
(c)
John will be liable for damage caused by the initial impact. Indy’s
collision with the lamppost may be a new intervening act on her part
and John is therefore unlikely to be liable for the further damage to
Indy’s car. Relevant case law might include Performance Cars v
Abraham [1961].
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