Tort law – Negligence Review Example

All topics covered on the Tort module are potential examination topics. This revision guide covers only those potential examination topics deemed core areas of knowledge in tort law. All students, whether studying toward the LLB or LLM, must have full command of these core topics for any assessment in tort law. Unless these notes expressly state otherwise, students can expect core examination topics to appear in either essay or problem form. Students can also expect essay and problem questions on core examination topics to be expressed in a variety of disguises.

Students are reminded that the essay component of the examination consists of a seen examination paper, so students will have knowledge of the questions in advanced of the date of the examination and will have no less than one month to prepare these questions. To maximise marks, essay questions should be supported by some reference to academic authority – text book references at the very minimum but reference to one or more academic articles studied on the module would improve the mark. Reference to academic articles for LLM students is absolutely essential for a pass mark on essay questions.

It is important that students cross reference these revision notes with the course guide and any other course material to ensure that examination answers reflect the emphasis placed in lectures and in seminars. Students often fail to perform well in examination because they abandon the course materials for general revisions texts, which may not reflect the focus of the course. Use revision aids by all means, but ensure these are all cross referenced with lecture and seminar guides and notes. Please note that a percentage of topics not identified as core will appear on a seen/unseen examination paper or on other forms of assessment.

Students should select non-core topics for examination/assessment preparation on the basis of knowledge, understanding and interest. Students must not expect to be able to answer questions in all the areas prepared for examination. Students must not expect all areas taught on the course to appear in the examination paper. To maximise marks, students must expect to prepare a reasonable coverage of the course. Tort law is a subject that cannot be understood in terms of discrete themes or topics. Many concepts underpin several topics within tort.

To maximise the chances of success in the examination, all students should prepare (as a minimum) the core principles of negligence, outlined below. Students should in addition have at least a working knowledge of topics that cross the range of themes in tort law (vicarious liability and Defences) and should prepare at least one non-core area. Structure of Examination Paper There are 10 questions in total. The paper is divided into 2 parts – seen/unseen (five essays (seen) and five problems (unseen). Students will receive the seen question paper on Wednesday 16 April 2014.

Students must answer at least two questions from the unseen part (but no more than three) and at least one but no more than two questions from the seen part. In terms of topic coverage, the paper aims at a fair and comprehensive representation of the themes covered in the course. Although the structure of the paper changed IN 2011, in terms of content coverage, past examination papers continue to provide a useful guide. No materials are permitted in the examination. Students are reminded that the minimum pass mark is 40% (LLB) and 50% (LLM).

Students are strongly advised to allocate the same amount of time to each of the four questions answered. In the past several strong students devoted too much time to answering questions from the seen part of the examination and, as a result, ran out of time. It is difficult to achieve a pass mark by answering only three questions – virtually impossible to do so with two questions answered. To achieve maximum success, students are advised to attempt all questions – even if doing so compromises the possible achievement of a very strong mark in one question. Revision and Seen Examination Paper.

Revision classes (including through the tuition line) will be offered after the seen examination question paper is released on Wednesday 16 April 2014. Tutors have been advised that they are not permitted to assist students in diagnosing the question(s) or in identifying relevant sources (cases/academic articles etc). However, tutors can assist students in their understanding and application of concepts/sources/arguments that the student has identified. For example, a tutor will not be permitted to confirm whether the case of Page v Smith is relevant to a seen question.

However, a student who feels that Page v Smith is relevant to a seen question can seek guidance/tuition as to the meaning, scope and general application of the case – not its application to the specific seen question. A tutor will not be permitted to confirm whether or not a particular question is wholly or substantially about vicarious liability, but if a student has interpreted the question as being about vicarious liability, he or she can seek guidance/tuition as regards the substantive content of that legal device. Revision Lecture Outline.

The purpose of these notes is to assist students in preparing for core examination topics by identifying key themes that often recur in essay and problem style questions Topic Overview Course Overview and the Nature and Functions of Tort Law The Concept of Damage in tort The Concept of Causation Vicarious Liability (within the context of fault and strict liability) Duty of Care: General Principles The Duty of Care: The Concept of Foresight The Duty of Care: Exploring Proximity: Nervous The Duty of Care: Exploring Proximity: Pure economic loss The Duty of Care: Just, Fair, and Reasonable Public Bodies Breach of Duty.

Factual Causation Legal Causation (remoteness) Defences Trespass Nuisance Defamation Breach of Confidence and Privacy Core Examination Topics The Concept of Damage (term one, lecture two and seminar three) Causation in Tort Law (term one, lecture three and seminar four) The Duty of Care: Development and Function (term one, lecture five (week six) and seminar six (week seven)) Elements of the Duty of Care: (term one, lectures eight to ten and seminars nine to week one or term two) comprising: -Proximity, with reference to psychological injury OR Negligent Misstatements -Just, fair and reasonable: Public Authorities

Breach of duty (term two, lecture one – no seminar) Vicarious Liability (term one, lecture four and seminar five (week 6)) Factual causation) (term two, lecture two and seminar three) Defences (term two, lecture four and seminar five) Core Examination Topics: Guidance Notes The Concept of Damage The important question of the nature of damage in tort law will be examined in some guise or other. Students must be prepared for a generally phrased question, enabling discussion of damage and the justification for restriction of liability in relation to damage which does not result in property damage or traumatic physical injury.

Equally, students must be prepared for questions on very specific forms of damage, such as economic loss or psychological injury. It follows that to prepare this topic comprehensively, students should cross reference with the concept of proximity (below). A broad question on damage will almost certainly emerge in essay form but a specific question (on economic loss for example) may arise in either essay or problem form.

A general essay question would aim to test understanding of the different categories of damage, the extent to which such damage will be compensated for in tort and, crucially, the reasons underlying any restrictions on claims in respect of different forms of damage. We explored the following categories of damage: 1. Personal Injury (comprising traumatic physical injury (accidents), non-traumatic physical injury (disease or so-called natural occurrences), emotional and psychological harm (nervous shock). 2. Damage to property – focussing on the distinction between damage and a defect.

3. Pure economic loss – focussing on distinction between negligent acts (not recoverable) and negligent misstatements (recoverable). 4. Wrongful birth –LLM focus The Concept of Causation Causation in tort will be examined in some guide or other. Students should be able to tackle an essay or problem question on the distinction between acts and omissions or the nature and application of the but for test of legal causation or the manner in which the law deals with intervening causes. Questions may invite consideration of a combination of these themes. The Duty of Care.

Students can expect to find a question on the duty of care but this is a very broad topic indeed. Students must examine this topic from two perspectives. First, the development of the duty concept: its function and the key cases which marked its development. Second, the specific elements of which the duty test is comprised: their content, the key cases that have defined the concepts and, crucially, how they are applied in various factual scenarios. Students are advised to cover foresight but to focus on proximity and just, fair and reasonableness. Perspective One.

The Duty of Care: Development and Function: essay questions All students should be able to demonstrate understanding of the historical development of the duty concept, noting cases from Donoghue to Caparo. Students should pay particular attention to the function of the duty of care –to limit liability for carelessly inflicted injury – and to how the different duty tests – Donoghue, Anns and Caparo – sought to achieve this goal.

Typical questions also include the role of international human rights principles in the development of the duty of care – note here the instance of public authority liability and Law Reform intervention in this regard. In this regard, students should note the recent UKSC decision in the case of Woodland v Essex County Council (2013) UKSC 66 – which extends the range of non-delegable duties of care beyond the context of employer/employee. Duty of care Development and Function: problem questions Be prepared for questions which probe difficult duty situations. A simple duty question will be one in which a defendant, not falling within a class where restricted duties apply, causes direct physical damage (excluding mental distress) to the plaintiff’s person or property.

Such cases include damage resulting from road traffic accidents (excluding mental distress) medical negligence where the AHA is being sued vicariously not directly, and duty categories that have been settled by law, such as employer and employee, doctor and patient, parent and child. In such cases although the test must still be applied, students should analyse the duty test as briefly and efficiently as possible, for it is likely that more substantial issues will be raised elsewhere in the question. A difficult duty question is one that usually requires detailed analysis of the proximity and reasonableness criteria, in particular.

These include cases where the damage is not directly caused by the defendant but by a third party, where the damage consists of pure economic loss arising from a negligent act – the Anns/Murphy scenario, cases where the defendant exercises wide discretionary or statutory powers (public bodies). In this category also are cases where the damage consists of mental distress and cases in which a finding of a duty of care would undermine statutory or common law rules or a pre-existing legal relationship between the plaintiff and defendant.

See below for discussion of the proximity and just, fair and reasonableness element of the duty test. For problem questions, only the Caparo test is relevant. Each element of the Caparo test MUST be systematically applied to problem scenarios. However, treatment of the test will differ depending on whether the question raises a complex or simple duty question. Difficult cases will be those that require more attention to the application of the specific elements of the test, especially proximity and just, fair and reasonableness. Perspective Two Elements of the Duty Test: proximity, just, fair and reasonableness).

Please note that although the first element of the test – foresight – does not form part of the examination ‘core’ it is an important area nonetheless. Proximity (the second element of the duty test) The course used the topics of psychological harm (nervous shock) and negligent misstatements to illustrate how the second limb of the Caparo test operates. Students must ensure that they thoroughly research one of these two illustrative topics. Students must be prepared to answer an essay or problem question on either negligent misstatements or psychological injury. Psychological Harm (Nervous Shock): essay questions.

An essay question will expect students to demonstrate understanding of the function of the proximity concept by analysing how claimants in nervous shock cases have to prove that they are in a proximate relationship with the primary victim. Pay particular attention to the physical and temporal requirements in relation to secondary victims – they must be on the scene or at the immediate aftermath. Primary victims must suffer traumatic physical injury or be exposed to such injury. Consider whether the relationship test as established in Alcock is a requirement of proximity or foresight.

Be prepared to discuss reform of the law, with reference to Law Commission proposals. Psychological Harm (Nervous Shock): problem questions The rules relating to mental distress are detailed but relatively straightforward. When giving advice, remember to divide potential claimants into primary and secondary victims. Page v Smith governs primary victims, Alcock, secondary victims – do not confuse the two. As with all cases where there are detailed tests of liability, EACH element must be applied to the problem scenario.

The amount of time you devote to analysing the particular element clearly depends on the facts of the hypothetical case. Be familiar with McLoughlin v 0 ‘Brien – the aftermath test is still relevant and well illustrated by that case. Make sure you understand the position of rescuers, following the decision in White v Chief Constable. Note also the Greatorex decision, where the primary victim is the author of his or her own fault. Negligent misstatements: essay questions Again, the idea is to use the instance of negligent misstatements as illustrative of ways in which judges conceptualise proximity.

Here the contractual device is deployed to good effect and cases such as Smith v Bush and Prabhaker present clear instances of the operation of the notion of a relationship between claimant and defendant which is ‘akin to contract’. The leading case of Caparo focuses on statutory obligations owed by auditors to shareholders but the general approach to proximity is the same. Be prepared to discuss justifications for restrictions on liability. Be sure to understand the different approaches in cases like Spring and White as compared to the standard instance that cases like Caparo evidence. Negligent misstatements: problem Questions.

Be prepared to answer questions in which the negligent misstatement is made to the claimant who suffers financial loss (the Caparo instance) as well as instances where the statement is made to a third party (such as a prospective employer (Spring) or a testator (White v Jones). It is in relation to the first type of case that fairly detailed rules on recovery apply (drawn from Hedley Bryne and Caparo). The latter instance is unlikely to lead to ‘indeterminate liability’ so the principles of recovery are much less stringent. Be prepared for questions set wholly or partially in a social context.

Just, Fair and Reasonable: Public Authorities (third element of the duty test) The course examined the third element of the Caparo test through analysis of the line of authority from Hill to Osman to Van Colle. Students must have a through grounding of these cases, of the interventions of the ECHR and of the policy factors courts will have regard to in deciding that, despite a finding that the claimants injury or loss was foreseeable and that there was a proximate relationship between the claimant and defendant, it is not just, fair and reasonable to find a duty of care.

This is a particularly topical area, given the Law Commission consultation document. Students should also have regard to the recent decision of the UKSC in Smith and others v MOD; Ellis v MOD and Allbut and others v MOD (2013) UKSC 41 – which refused (by a majority) the application of the MOD to have claims struck out on the basis (inter alia) of the just, fair and reasonable element of the duty test. Just, Fair and Reasonable: essay questions

As indicated in relation to the topic on the development and function of the duty of care, typical essay questions concern the similarities and differences between the just, fair and reasonable criterion and the second stage of Lord Wilberforce’s two-stage duty test (Anns v Merton). Students may be asked to examine the role of the ECHR in developing the duty concept. Students may be asked to critically examine the justifications for and against the current state of the law, which gives to public authorities a high level of protection from negligence actions.

Law Commission intervention is relevant here. Just, Fair and Reasonable: problem questions Students must position discussion within the broader context of the duty test, ensuring that the other two elements of the duty equation (foresight and proximity) are discussed. Maximum credit will be given to students who can demonstrate a good understanding of the most recent authorities on the topic (such as Smith and Van Colle and Brooks) and who can relate these authorities to the decision in Hill Breach: essays questions.

Typical questions surround the question of whether the law should take into account inexperience or incapacity of a defendant in setting the standard of care. Be prepared to probe the standard practice ‘defence’ as applied to defendants exercising a special skill, with especial reference to Bolam and Bolitho. Be prepared also to discuss whether cases like Sideaway and Chester v Ashraf have brought about a notion of informed consent. Breach problem questions There are two distinct stages to the breach of duty enquiry – ensure that your arguments reflect this. What is the appropriate standard of care?

Is the defendant to be judged by the average or skilled standard? Remember to apply the Bolam test in relation to skilled defendants. Note also that there are two limbs to the Bolam test, the first that skilled defendants are judged by the standards of their peers, the second that adherence to a standard practice MAY determine the breach of duty question. In this regard note in particular: Bolitho v City and Hackney Health Authority (1997) 4 ALL ER 771. Has the defendant fallen below the standard? To answer this question you need to balance the measure of the risk against the cost of avoiding it.

Ensure that you identify clearly the factors to be taking into account, e. g. emergency, financial costs etc. Here, the concept of foresight (discussed above) is important. Causation (factual): essay questions Typical questions surround the issue of how judges resolve difficult questions on causation, especially the case of multiple causes and cases where medical or scientific evidence is inconclusive. Students should be prepared to consider whether loss of chance should be recognised. Be prepared for questions requiring a critical and in-depth knowledge of one or more of the leading cases on causation.

* Barnett (1969) is the typical and basic case to show the simplicity and impact of causation. Students should be able to recognise the differences between Fairchild (2002); Barker v Chorus (2006) and Sienkiewicz (2011) and… the importance of the Compensation Act (2006) in this line of cases. Causation: problem questions Always begin by applying the’ but for’ test, but bear in mind that there are many situations in which the test has proved inadequate. It is likely that you will be tested on one or more of these ‘difficult’ instances; they include uncertain causes, multiple causes and successive causes.

Ensure that you understand arguments concerning loss of chance per Hotson, especially in light of the two recent Supreme Court decisions. Note also the approach to questions of causation taken in McGhee, Wilsher and Fairchild in particular. Consider also intervening acts by the plaintiff, a third party or a natural event. Note that judges apply both foresight and reasonableness as tests to determine whether the chain of causation has been broken. * Students should also recognise the peculiarity and the problems of causation brought by Gregg v Scott (2005). Vicarious Liability.

Please note that issues of vicarious liability may be raised in relation to any tort, not just the tort of negligence and the principles of application are the same. This topic may form the basis of an essay or problem question or be raised as a relatively peripheral issue on a question which is substantially on another topic in tort. For this reason, students should have a working knowledge of the area. Essay questions will typically require exploration of the justifications for holding employers liable for the wrongful acts of employees – this must be answered with reference to the broad functions of tort law.

For problem questions, remember that three things must be proved: the commission of a tort, the fact of the employment relationship, the requirement that the tort occurred in the course of employment. Course of employment is the most important and contentious of the requirements and Lister is still the leading case. Defences Defences in tort also apply beyond the tort of negligence, requiring a working knowledge. The topic may also form the whole or the main part of an essay or problem question. Essay questions are likely to probe the justification for restricting damages where the claimant clearly has suffered at the hands of another.

An essay question may also require detailed understanding of one or more of the controversial defences, such as illegality – for which a good understanding of cases like Pitts v Hunt is required. Be prepared to discuss reform, including Law Commission intervention. Problem Questions – are likely to focus on application of principle in relation to contributory negligence, illegality or volenti * Vellino v Chief Constable (2002) is a key case reference point for students and should be used to frame a discussion about the difficulty of classifying the various defences.