OCR AS and A-Level Tort

Answers to self-test questions and tasks for Part 1

Chapter 1 Task 1 The role of law in society is to regulate behaviour so the court will look at protecting pedestrians from harm caused by cricket balls. However, when doing this the court will take the interests of society into account and it is this public interest which prevailed. Having cricket was judged as more important in these circumstances and it is interests of society as a whole. When balancing interests, the judge will try to achieve justice, but there is no agreed definition of what justice is and there is unlikely to be agreement on whether it was achieved. The club took precautions so it seems just that it was not liable, but the woman may not feel justice was achieved. Finally, the woman may have felt she had a moral right to be compensated but she did not have a legal one. Chapter 2 Task 2 You may have put it slightly differently but one way of putting it would be that you should take care not to do something, or fail to do something, that might harm others. This does not mean everyone but those who are likely to be affected by your actions, e.g., people you should have considered before acting. Applying this to Donoghue v Stevenson, a manufacturer should owe a duty to a consumer because a consumer is someone likely to be affected by the actions of a manufacturer. A consumer is also someone whom a manufacturer ought to have in mind when manufacturing the product, in this case ginger beer. Task 3 Mrs D couldn’t sue the shopkeeper because she had no contract with the shopkeeper, her friend bought the drink. She sued the manufacturer and the HL decided that a manufacturer owes a duty to the consumer. I think the manufacturers were negligent in not checking the contents properly or by allowing a snail to get into the production area. Task 4 There are several types of relationships which arise in sporting situations and therefore many people could owe a player a duty of care. These could include the organiser of the event and a referee as in Watson and Vowles. It could also include a manager or coach, the club where the player was injured or played for, other participants in the sport or anyone who had a role to play in setting up the event. Self-test questions 1. In Sutherland Shire County, Brennan J said, “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories.”

1 © Sally Russell 2017 2. The three-part Caparo test is: a. there must be foreseeability of harm b. there must be proximity between C and D c. it must be fair, just and reasonable to impose a duty on D 3. Among others, police, hospitals, rescue services and local councils might be immune from owing a duty. 4. No duty was owed in Bourhill v Young because there was no proximity between her and the driver since she was not at the scene. 5. No duty was owed in Caparo because there was no proximity between the investor and the auditors, nor was it fair, just and reasonable to impose a duty. Chapter 3 Task 5 Applying the factors to Bolton v Stone 1951, the potential harm would be serious as cricket balls are very hard and can kill. However, this is balanced against the low degree of risk (it had rarely happened) and the precautions the cricket club had taken (erecting a high fence). It is also arguable that it was justifiable due to the social benefit of the game of cricket. Finally, it was a ‘desirable activity’ under the Compensation Act. On balance, the club was not in breach because it had done all that a reasonable cricket club would do. Task 6 You may have chosen other cases, but here is one example. In The Scout Association v Mark Barnes 2010, the important factor was whether the activity had sufficient social value. The CA thought the value was limited and therefore the risk was not justified. Applying the other factors, it can be said that the risk of harm was foreseeable because the main lights were off and the scouts were running around in the dark. The seriousness of harm would not seem that great though, because there is only a limited amount of harm that can be caused by people running around indoors. The club had taken some precautions by using the emergency lighting but arguably should have removed the furniture, at least at floor level. On balance, it seems the lack of social value was the deciding factor in finding the Scout Association had breached its duty. Task 7 Here is the summary with some cases added The standard of care expected is that of the reasonable person in those circumstances Reasonable parent (Harris v Perry) Reasonable employee (Daw v Intel) Reasonable child (Mullins/Orchard v Lee) Reasonable doctor (Bolam/Bolitho/Montgomery)

2 © Sally Russell 2017 The standard expected is based on 4 factors: The degree of risk (Bolton v Stone) The seriousness of potential harm (Paris v Stepney BC) Whether the risk was justifiable (Watts) The expense and practicality of taking precautions (Latimer) Self-test questions 1. The objective standard was explained by Baron Alderson in Blyth v Birmingham Waterworks Co. 1856. 2. The four factors which the court may consider when deciding what is reasonable, with a case example, are: a. the degree of risk – Bolton v Stone b. the seriousness of potential harm – Paris v Stepney BC c. the expense and practicality of taking precautions – Latimer v AEC d. whether the risk was justifiable – Watt v Hertfordshire CC 3. The standard expected of a professional is the standard of a person in that line of work 4. The standard expected of a child is the standard of a child of similar age, not an adult 5. The employers had not breached their duty in Maguire v Harland & Wolff plc 2005 because at the time of C’s exposure the risks of secondary exposure were unknown. The injury to a member of C’s family was therefore not foreseeable. Chapter 4 Task 8 The answer depends on your chosen cases but here is one example from the duty cases and one from breach. In Watson v British Boxing Board 2000, the boxer Michael Watson suffered head injuries during a fight against Chris Eubank. He sued the Board on the basis that had proper medical treatment been given at the ringside he would not have suffered brain damage. It can be said that ‘but for’ the failure to provide medical treatment he would not have suffered brain damage. As regards remoteness of damage, it is foreseeable that if medical treatment is not available at a boxing match where people are hitting each other, then someone could suffer harm. As harm is foreseeable it is not too remote from the negligent act or omission (the failure to provide medical treatment) so the Wagon Mound test is also satisfied. In Palmer v Cornwall CC 2009, a boy of 14 hit another boy in the eye while throwing stones at seagulls. The CA held that only one supervisor for around 300 children was clearly inadequate so the council was in breach of duty. It can be said that ‘but for’ this breach the boy would not have been injured. It is also foreseeable that if there is not adequate supervision the boys may do something like this (based on the idea that children are likely to “do the unexpected” as held in Jolley). The harm was therefore not too remote from the breach of duty (the failure to provide adequate supervision). Task 9

3 © Sally Russell 2017 Here are the questions with some cases added.

Would the harm have occurred ‘but for’ D’s act or omission?

The ‘but for’ test comes from Barnett v Chelsea and Kensington HMC. In that case the man would have died regardless of treatment so the ‘but for’ test was not satisfied. The answer to ‘but for the breach would he have died?’ was ‘yes, he would have died anyway’.

Was the harm foreseeable or was it too remote?

Under the Wagon Mound rule, causation in law is only proven where the harm was foreseeable. The damage from the fire was not foreseeable so it was too remote from the breach and D was not liable for this, only for the damage from the oil.

Was this type of harm foreseeable?

In Hughes v Lord Advocate, the court held that as long as the type of harm was foreseeable the exact extent of the harm need not be. Here the burns were foreseeable so D was liable for the greater injury caused by the explosion.

Does the thin-skull rule apply?

If there is something which makes V more vulnerable than other people this will not affect D’s liability. In Smith v Leech Brain 1962, D’s negligence caused a small burn, which activated a latent cancer from which C died. D was liable for the death, not just the burn.

Self-test questions 1. The ‘but for’ test asks ‘but for D’s action would harm have occurred?’ It comes from Barnett v Chelsea & Kensington HMC. 2. The Wagon Mound case established the rule on foreseeability 3. Hughes added that if the type of harm is foreseeable this is enough; the exact harm need not be 4. The ‘thin skull rule’ means that if a person is harmed because he/she is particularly vulnerable (e.g., has a thin skull), D is liable for the full consequences even if someone without the vulnerability would not have been harmed to the same degree. The point made in Jolley (in the HL) regarding children, was that they do the unexpected. Chapter 5 Task 10 There are many possibilities and you may have chosen others. Lawful visitors would include anyone called in such as a doctor, plumber, decorator or electrician. Others who may have implied consent to be on the premises would include the emergency services, delivery or postal workers, refuse collectors and meter readers. Task 11 In Glasgow, the claim succeeded because the berries were attractive to a child, so classed as an allurement, and the child was old enough not to require the constant supervision of a parent as it

4 © Sally Russell 2017 was a public park (where children are expected to play). In Phipps, the court held that if the child is very young, a parent or other adult should take responsibility so D is less likely to be liable for an allurement. Task 12 In Woodward, it was easy to check the work of the cleaner. In Gwilliam, D could not be expected to check how a ‘splat-wall’ had been set up (so this is more like Haseldine). In Bottomley, the cricket club should have checked insurance was in place whereas in Gwilliam, the hospital had specifically asked about insurance, and paid for it, so were not liable. Task 13 Pete’s injury may not be one he is expected to take precautions against, if it is seen as outside his area of expertise, so Tim may be liable. However, it could go either way. If, e.g., the plank is rotten due to the faulty water tank, it is arguable that he is in the exercise of his calling, and should guard against such risks. Eddie is more clearly in the exercise of his calling, and should guard against the risk of being electrocuted. In this case, Tim is unlikely to be liable. Task 14 There is no set answer for this but hopefully you spotted some signs. Self-test questions 1. The control test is used to decide who is an occupier – Wheat v Lacon 2. The occupier’s duty is to take such care, as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited to be there – Poppleton 3. An allurement is something attractive, especially to a child. In the case of children this could mean the 1957 Act rather than the 1984 Act applies, i.e., a child trespasser may become a lawful visitor by being ‘invited’ by the allurement – Glasgow Corporation v Taylor 4. An occupier may owe a duty for work done by an independent contractor when not taking reasonable care in selecting a suitable contractor, or not checking the work – Woodward v Mayor of Hastings Chapter 6 Task 15 I would explain to Paul the provisions of s 1(3) of the 1984 Act, because he knows the neighbours’ kids are coming in, and he knows the pool is deep so possibly dangerous. However, it may not be reasonable to expect him to protect against this risk more than he has done. I would also tell Paul that even if a duty was owed (and this is not very likely) under s 1(5) OLA 1984, an occupier can discharge any duty by putting up warning signs. The sign he erected may not be enough on its own, as it does not warn of any danger, but by also erecting a high fence he has taken such care as is reasonable in the circumstances so will not be liable. I would add that a swimming pool may be considered an allurement and could bring any claim within the 1957 Act. However, I would reassure him that he has again discharged his duty by putting up a high fence and the sign.

5 © Sally Russell 2017 As regards why my advice might be different on the later occasion, I would again explain the provisions of s 1(3) of the 1984 Act, in particular that Paul now knows of the danger because it happened before. He has reasonable grounds to believe the neighbours’ kids might come into the vicinity now there are gaps in the fence. It is reasonable to expect him to protect against this risk by mending the gaps in the fence. He is likely to be liable unless he can persuade the court that the harm was caused by the activity rather than the state of the premises, but as it would be easy to fix the fence it is more likely that BRB v Herrington rather than Tomlinson or Keown would be followed. Task 16 There is a diagram for this in the summary. Self-test questions 1. British Railways Board v Herrington led to the OLA 1984 2. The case of Scott and Swainger illustrates the more limited duty under the 1984 Act 3. The three points for proving the occupiers’ duty under s 1(3) are: a. D is aware of the danger or has reasonable grounds to believe it exists b. D knows or has reasonable grounds to believe a ‘non-visitor’ is in, or may come into, the vicinity of the danger c. The risk is one against which, in all the circumstances of the case, D may reasonably be expected to offer protection 4. There was no liability in Ratcliff because he knew what he was doing and the risk of hitting his head on the bottom would be obvious to anyone. 5. Cases involving child trespassers sometimes come under the OLA 1957 if there is an allurement, something so attractive that it effectively ‘invites’ the child onto the premises. Summary 1 Task 17

If a case is based on policy the judge will take into account what is best for society as a whole, so each case will depend on its particular facts.

Tasks 18 and 19 Duty Based on the Caparo test The loss must be foreseeable – Donoghue There must be proximity between the parties – Bourhill It must be fair, just and reasonable to impose a duty – Hill Breach The standard expected of D is that of the reasonable person – Blyth. Note, though the subjective element:

6 © Sally Russell 2017 professionals (Bolam/Bolitho/Montgomery) learners (Nettleship) children (Mullin) Add the four factors which apply in all cases: the degree of risk – Bolton v Stone/Maguire v Harland & Wolff plc 2005 the seriousness of potential harm – Paris v Stepney BC1951 whether the risk was justifiable – Watt v Hertfordshire CC 1954 the expense and practicality of taking precautions – Latimer v AEC 1952 Causation Would the harm have occurred ‘but for’ D’s act or omission? Barnett v Chelsea & Kensington HMC but note also Fairchild v Glenhaven Funeral Services Ltd Was the harm foreseeable or was it too remote? The Wagon Mound Was this type of harm foreseeable? Hughes v Lord Advocate Does the thin-skull rule apply? Smith v Leech Brain Task 20

Case Brief facts Principle

Glasgow Corporation v A 7-year-old child died after if there is an allurement a child Taylor picking and eating some berries in may be a lawful visitor a park and the council was liable

Phipps v Rochester A 5-year-old C was injured on adults should be responsible for Corporation council land but was only with very young children another child. The council was not liable

Jolley v Sutton LBC 2000 A 14-year-old boy was injured children should be expected to do when working on a derelict boat the unexpected on council land. The council were liable

General Cleaning A window cleaner was injured a professional is expected to guard Contractors v Christmas when he fell off a building after a against risks incidental to the job defective window closed on his hand

Ogwo v Taylor C was a fireman who was injured if a professional is on the premises putting out a fire negligently because D has been negligent,

7 © Sally Russell 2017 started by D there is more likely to be a duty

Bottomley v Todmorden A cricket club hired an uninsured taking reasonable care includes Cricket Club stunt team to perform firework checking insurance is in place displays on its land and a helper was injured

Tomlinson An 18-year-old dived into a lake if an injury is caused by a voluntary and sustained injury activity rather than the state of the premises D is not likely to be liable

Chapter 7 Task 21 AS examination practice Question 1 (A01 10 marks)

The literal rule is the traditional approach to statutory interpretation. It requires the judge to take the words of an Act at face value. The literal rule is hard to apply if the wording in the Act is ambiguous. It can also lead to an interpretation which may go against the intentions of Parliament.

The literal rule was used in Fisher v Bell 1961 where a shopkeeper who displayed a flick-knife in the window was found not guilty of offering it for sale. It was an offence under the Restriction of Offensive Weapons Act to ‘offer for sale’ such weapons. The words ‘offer for sale’ were interpreted strictly under contract law, and in contractual terms, goods in a shop window display are not an offer. The decision that the shopkeeper was not guilty does not seem to accord with what Parliament intended when it passed the Offensive Weapons Act. This was recognised in the case itself when Lord Parker said “I, for my part, though I confess reluctantly, am driven to the conclusion that no offence was here committed”. The fact that he was reluctant shows that he recognised the result was not satisfactory. Another example is Whiteley v Chappell 1868, where an Act of Parliament made it an offence in an election to impersonate any person entitled to vote. A man tried to vote by impersonating a dead man. The literal rule was applied and as a dead man is not ‘entitled to vote’ he was acquitted. This again seems contrary to what Parliament was trying to achieve which was to stop election fraud.

In the Times Law Awards ceremony 1997, Lord Mackay (the then Lord Chancellor) said, “The duty of the judge is to apply the law as he finds it, not to seek to rectify perceived inadequacies by the use of creative interpretation.” This seems right as Parliament is elected and judges are not, but as shown above it is not always sensible to take the words too literally.

The decisions in Fisher and Whiteley are both examples of the literal rule leading to an unsatisfactory result. However, it seems the judges did not think the result was absurd in either case. This is because if a result of using the literal rule leads to absurdity the golden rule may be used, and it wasn’t. The golden rule adjusts the literal rule in such cases to remove the absurdity which results from its use. This is the broad sense of the rule and is used where there is no ambiguity

8 © Sally Russell 2017 but the use of the literal rule needs to be avoided because otherwise the resulting decision would be absurd. If the judge in Fisher had thought the result absurd he could have used the golden rule. This would be to interpret the words to avoid the absurdity but no further. Thus, the words ‘offer for sale’ could have been interpreted as meaning ‘offer for sale expressly or by implication’. This would achieve the purpose of Parliament as goods in a shop window would be for sale by implication. The narrow approach would not have worked in Fisher as the words were not ambiguous in contract law. This narrow use of the rule is where a word has several meanings, some of which produce less absurd outcomes when using the literal rule. The judge can choose the interpretation which leads to the least absurd even though another is more literally correct.

An example where the rule was used successfully is Adler v George 1964, where an Act provided that it was an offence to obstruct a member of the RAF ‘in the vicinity’ of a prohibited place. The man was arrested at the RAF station and argued that as he was on the premises itself he could not be ‘in the vicinity’ of it. The judge interpreted the words ‘in the vicinity’ of a place as including the place itself and said any other interpretation would be absurd, so he was found guilty.

Question 2 (A01 10 marks)

There are many stages to go through in the process of changing or making a law, both informal and formal. Before the formal procedure starts the proposals for the law are discussed with various organisations and people who may be affected by them. At this informal stage, the government may publish Green and White Papers. These are ‘consultation documents’, which give people an opportunity to comment on the proposals. The introduction of the Draft Bill into one or other of the Houses of Parliament starts the formal procedure. The only bills that must be started in the Commons are Finance Bills. Most Bills can start in either House and go through several stages there before moving on to the other House to further debate the proposed law and suggest amendments.

Public bills are usually introduced by the relevant government minister and there is a first reading. This merely notifies the House of the Bill and its subject matter. There is no debate, but there is a vote. The second reading is where the main debate on the principles of the Bill occurs, followed by a vote. The next stage is the committee stage where a committee of Members of Parliament examines the details of the Bill clause by clause and suggests amendments. This is where there is the greatest scrutiny and the chance of correcting any errors. In the Commons, the report stage is next; this is where the committee report the amendments back to the House. This stage usually goes along with the third reading, and then a vote is taken. The Bill then goes to the other House for similar procedures, although in the committee stage in the Lords the whole House acts as a committee so there is no need for a report stage.

The role of the House of Lords is that of a revising chamber. As it has more time for debate the HL can spend longer looking at the issues in depth and make suggestions for amendments after a period of consideration. However, this does mean it is more time-consuming and there are examples of a ping-pong procedure where bills get sent back and forth between the two Houses with various amendments and objections. This can go on for a considerable time before the Bill eventually becomes law, an example being the Immigration Bill in 2016. The House of Lords can delay but

9 © Sally Russell 2017 cannot veto a Bill. This is because the Parliament Acts allow the Commons to bypass the House of Lords after a period of time and send the Bill through for Royal Assent without the consent of the Lords. This happened with the Hunting Bill and highlights the greater power of the elected Commons.

The final stage is Royal Assent; this is where the Monarch gives approval to the Bill. This is a formality and not undertaken by the Queen personally. The last time Royal Assent was refused was by Queen Anne in 1707. The bill is now an Act of Parliament although not necessarily law as sometimes time is given for implementation of the Act and it becomes law later. The Act may specify a date on which it will come into force, or give power to a Minister to bring it in at a later date, as with the Human Rights Act 1998. This also started in the Lords and is an example of how lengthy the process can be. It took over two years to go through the two Houses and another two years before it was brought into law by the Home Secretary.

Question 3 (A01 10 marks)

Persuasive precedent means that a judge does not have to follow the earlier decision but may be persuaded to do so. To decide what is binding and what is only persuasive when looking at judgments, a distinction needs to be made between the ratio decidendi and obiter dicta. The first is the reason behind the decision, the principle on which it is based and it is this that is binding on a later judge. Obiter dicta are ‘by the way’ statements and are not binding, though they may be persuasive precedents. An example is Howe 1987. The House of Lords ruled that duress could not be a defence to murder and added that it was not a defence to attempted murder. The case did not involve attempted murder so this was obiter dicta. However, it was followed in Gotts 1992.

In appeal courts, there is more than one judge, so more than one judgment. If a judge did not agree with the majority this is called a dissenting judgment. Sometimes this is followed rather than the majority judgment, especially if made by a well-respected judge, so this is another type of persuasive precedent. An example is Hedley Byrne v Heller 1963. In this case the House of Lords followed a dissenting judgment by Denning LJ in Candler Crane v Christmas 1951 where he said there could be a duty in tort for economic loss.

Decisions of the Privy Council are not binding because it is an appeal court for commonwealth countries not for England and Wales. However, it is made up of judges from the UK Supreme Court so its decisions are highly persuasive. In Holley, the Privy Council rejected the earlier law on provocation and said the defendant should be judged against a person having “ordinary powers of self-control”. This was followed in later cases and the Coroners and Justice Act 2009 put Holley into statutory form in the new defence of loss of control. This is an example of a persuasive precedent becoming a binding law.

The court hierarchy is important because courts are bound by earlier decisions of the courts above, and usually their own, but not by the courts below. However, one type of persuasive precedent is where a higher court follows a lower court even though it is not bound to. An example is R v R where the House of Lords followed a decision of the Court of Appeal, and in so doing overruled an earlier decision of its own because it felt it was right to do so in the interests of justice.

10 © Sally Russell 2017 In the interests of certainty Lord Bingham thought judges should ensure that there is a clear majority ratio where possible, even if judges disagreed. There may be a dissenting judgment but he felt it important that later judges should be able to find a clear ratio for the principle behind the final decision. Clarity is important because a precedent can only be persuasive if the rules on overruling do not prohibit it. The House of Lords was persuaded by a decision of the Court of Appeal in R v R and refused to follow its own previous decision. That could not have happened the other way round because if there was already a previous decision of the Supreme Court, the CA would have to follow that and not any persuasive precedent.

In conclusion, a binding precedent must be followed, whereas a persuasive precedent does not have to be but a court may be persuaded to follow it, especially if it is based on the decision of a respected judge in the higher courts.

Question 4 (A03 10 marks)

Precedent is based on the Latin term stare decisis, which means judges should follow earlier decisions. A key element of this principle is the court hierarchy. It is important because courts are bound by earlier decisions of the courts above, and usually their own, but not by the courts below. Despite the fact that judges should usually follow earlier decisions, there are ways for judges in the senior courts to avoid this rule. The law requires certainty, especially in the criminal law, so precedent should normally be followed, but it may be that this would cause unfairness so there should also be some flexibility. Unfairness in the law as it stands is one reason a judge may not want to follow an earlier decision. The Supreme Court (SC) can overrule its own decisions by using the 1966 Practice Statement if ‘it appears right to do so’. In Edwards v Environment Agency 2011, the SC confirmed that it had all the powers previously invested in the HL. So, the powers given under the 1966 Practice Statement have passed to the SC. This gives a wide discretion and allows an old law to be changed. An example of the HL overruling an earlier decision of its own is Gemmell & Richards where Caldwell was overruled and all recklessness made subjective. This is one reason the higher courts might not want to follow a precedent, in order to achieve justice. It is necessary to be flexible if justice is to be achieved, and also if an error has been made the senior courts will want to avoid repeating it.

One reason to avoid following an earlier decision is to achieve justice. Another is that the law should adapt to social and technological changes. Parliament does not always react quickly to such changes and if the law is outdated there should be a way to amend it. An example of responding to social change is R v R, where the HL decided that it was no longer acceptable that a man should have immunity from raping his wife.

However, very few cases reach the SC so it is important for the Court of Appeal (CA) to have its own powers as a CA judge may not want to follow an earlier decision. The rules from Young v BAC allow the CA to overrule its own earlier decisions in certain circumstances, but they are fairly limited. The Criminal Division of the CA has a little more flexibility as it is able to avoid following a decision if it would cause injustice to do so, because a person’s liberty is a stake. Even though an appeal court judge may not want to follow a decision of the Supreme Court there is no way of avoiding this under the above rules as the Supreme Court binds all courts below. However, distinguishing is a way of avoiding following an earlier decision which applies to all courts. A case may be distinguished where the material facts are different. An example is seen in Wilson where Brown was distinguished. Although the facts were similar, as both involved serious harm suffered during consensual sexual

11 © Sally Russell 2017 activities, the judge found material differences. In Brown, there was more unacceptable violence and in Wilson the activity was between a man and his wife. The judge could avoid finding Wilson guilty of GBH by distinguishing the earlier case on the basis that whether such activities occurred outside or within marriage was a material fact.

Question 5 (A01 10 marks)

I would advise Sam that the first step in a claim in negligence is to prove duty of care which is based on Donoghue v Stevenson. In that case it was established that people are owed a duty of care if another person’s acts affected them and the resulting harm was foreseeable. This was later extended and is now based on a three-part test as set down in Caparo v Dickman. The Caparo test for duty is foreseeability of harm, proximity between the claimant and defendant and whether it is fair, just and reasonable to impose a duty. In Donoghue v Stevenson, it was foreseeable that the manufacturer’s actions could harm a consumer of the ginger beer. Here it is foreseeable that Andy’s actions in leaving the bridge unattended would cause harm to motorists and other passers-by, as it was in a dangerous state. Proximity can be in time, space and relationship. In Kent v Griffiths, an ambulance service was in proximity to a patient once it had accepted the call and dispatched an ambulance. Here Sam was present at the time of the bridge collapsing and Andy had a proximate relationship with all motorists near the bridge, including Sam, as he had taken charge of the situation. Whether it is fair, just and reasonable to impose a duty is based on policy so will take into account the interests of society. This can sometimes exclude claims against the police, as here, because it is a publicly funded body and allowing claims could lead to ineffective policing as stated in Hill v CC for West Yorkshire. It seems fair, just and reasonable to impose a duty in these circumstances because it will not open the floodgates to claims as only a limited number of people will be in the area. It will not make policing ineffective as in Hill, where it was not in the public interest to impose a duty because it could lead to defensive policing. Question 6 (A02 10 marks)

To prove breach of duty and causation there are several legal tests. Breach is based on what a reasonable person would do (Blyth v Birmingham Waterworks Co.). The courts will consider whether Andy had acted as a reasonable police officer should, by balancing several factors against each other. Firstly, the degree of risk was high because the bridge was in a dangerous state. In Bolton v Stone, the risk was low so sufficient care was taken by erecting a fence. Here there was a higher risk, which raises the standard, so greater care should have been taken. The gravity of potential harm is high, as in Paris v Stepney BC, which again raises the standard expected. A collapsing bridge could potentially cause serious harm to anyone nearby. There appears to be no justification for taking the risk, which could have been the case, e.g., if Andy was called to an emergency. Then he could rely on Watt v Hertfordshire CC, where a fire service was not in breach because they were rushing to an emergency. Finally, taking precautions against the risk would not have been expensive or impractical; he could have put up cones or warning signs. In Latimer v AEC sufficient precautions were taken, but this is not the case here. On balance, he did not reach the standard expected of a reasonable police officer.

12 © Sally Russell 2017 Sam would not have been injured ‘but for’ Andy leaving the scene unattended, unlike in Barnett where the man would have died anyway. The harm is not too remote from the breach (The Wagon Mound) because it is foreseeable that leaving a bridge in a dangerous state could cause harm. There is causation both in fact and in law. Sam is likely to succeed in his claim. Question 7 (A02 10 marks)

To prove breach of duty D is judged against the standard of a reasonable person in the same circumstances (Blyth). However, this objective test is a little different in the case of a professional. Dr Blood will be judged against the standard of a reasonably competent doctor. This requires looking at what a reasonable body of medical opinion would consider reasonable, as established in Bolam. Although, in Bolitho the court held that this opinion must have a logical basis. It says he went ‘against normal procedure’ so he is likely to fail this test. It would be normal procedure to check for allergies before giving drugs, so Dr Blood has not reached the standard of a reasonably competent doctor. The factors that are balanced in other cases of breach also apply to professionals. There is quite a high risk of harm and it would be easy to take the precaution of asking Sam about allergies, unlike in Latimer where precautions would be costly and impractical. There is no evidence that he was called to an emergency, which may have tipped the balance in his favour. He has therefore breached his duty of care. The next step is causation. Factual causation is assessed using the ‘but for’ test, established in a case on similar facts (Barnett v Kensington HMC). In that case the man would have died even if the doctor had not been in breach of duty but here if the doctor had checked for allergies Sam would have been given different drugs so would not have suffered an allergic reaction. It is also foreseeable that not checking for allergies would lead to further harm as per the Wagon Mound. The fact that Sam has an allergy may indicate that the harm was not normally foreseeable but the ‘thin-skull’ rule will apply. This is that if the person has an existing vulnerability, as in Smith v Leech Brain, D is still liable for the harm that results even though a normal person would not have been so affected. Dr Blood has breached his duty of care and caused Sam the further harm so will be liable to compensate him for the injuries, loss of earnings and other related expenses. Question 8 (A03 10 marks) The last part of the Caparo test is a matter of public policy. The court will consider whether it is fair, just and reasonable to impose a duty in the circumstances. To decide this, the court looks at what is best for society as a whole and will also consider whether it is necessary to restrict the duty to avoid ‘opening the floodgates’ to claims. The courts are reluctant to impose a duty on those providing a public service. Actions against public bodies such as the police, hospitals, rescue services and local councils may therefore fail on this point. This means that the courts may refuse to impose a duty on such groups, even though harm is foreseeable, as a matter of public policy. A key case is Hill v CC for West Yorkshire where the House of Lords refused to impose a duty on the police to a member of the public who was a victim of the ‘Yorkshire ripper’. The HL thought imposing a duty in such cases could lead to defensive and ineffective policing, so it was not in the interests of society. In Michael v CC of South Wales, the victim of an attack sued because she had told the police about a likely attack threatened by her ex-partner and the police had failed to do anything. The Supreme Court followed Hill and said that the public at large should not bear the burden of compensating a

13 © Sally Russell 2017 victim for harm caused by a third party for whom the state was not responsible. Two dissenting judges felt that Hill could be distinguished because there was a closer proximity, as she had contacted the police. However, the majority held that public policy considerations of placing too much of a burden on the police and on the public purse outweighed this. The reluctance of the courts to open the floodgates to claims is also reflected in these cases, especially Hill where the victim was a member of the general public rather than an identifiable potential victim. This argument is less justified in Michael because imposing a duty would not have opened the floodgates. A duty would only apply to people who had contacted the police to warn of a threatened attack. One case where a duty was imposed on the police is Reeves v MPC, where the police owed a duty to a man who committed suicide in custody. This was because he was not only in custody, but also the police knew he was a suicide risk. Imposing a duty was therefore fair and there were no policy reasons not to do so. Local councils also have some immunity, again depending on the circumstances. In Fernquest v Swansea CC 2011, a man sued the council after slipping on ice at a bus stop. The judge applied Caparo v Dickman 1990 and held that there was proximity between the parties and the risk of injury was foreseeable as the council knew about the ice. However, the CA reversed the decision and held that although injury was foreseeable, it was not fair, just and reasonable to impose a duty of care on a council for ‘normal hazards’ which members of the public could be expected to be aware of. Hospitals will owe patients a duty of care in most cases but again policy considerations may prevail. In Darnley v Croydon NHS Trust 2017, a man attended an Accident and Emergency department after being injured in an attack, and was told he would have to wait for up to four or five hours. He was in pain so left after only a matter of minutes, not realising that he would have been seen by a triage nurse earlier than that. His condition later got worse and he sued the hospital, saying that his decision to leave was based on incorrect information and had he stayed he would not have suffered a greater degree of harm. The court applied the Caparo v Dickman 1990 test and held that it would not be fair, just and reasonable to impose a duty on the hospital for the failure by the receptionists to inform him of the likely waiting time to be seen by a triage nurse. He should take responsibility for the consequences of his decision, not the hospital or its reception staff. The CA agreed and rejected C’s appeal. In conclusion consideration of public policy is seen in many cases when deciding whether to impose a duty of care, especially where compensation would be paid by public funds.

14 © Sally Russell 2017 Answers to self-test questions and tasks for The Bridge and Part 2 Task 22 There is no answer for this task but hopefully you have made some notes.

Chapter 8 Task 23 In Bolton, the cricket balls were very infrequently hit over the fence. This meant there was neither a breach of duty (for a negligence claim) nor sufficient frequency (for a nuisance claim). In Castle, the siting of the tee was near a road and the golf balls frequently reached it, therefore in this case C’s claim succeeded. Task 24 Again, the main difference between Bolton and Miller is frequency. In Miller, the cricket balls frequently landed in her garden so she succeeded in her claim. Task 25 There is no answer for this but hopefully you saw or heard, or even smelt, something that could constitute a nuisance. Task 26 Bolton v Stone 1951 – frequency and social benefit Miller v Jackson 1977 – frequency and social benefit Sturges v Bridgman 1879 – locality Hirose Electrical UK Ltd v Peak Ingredients Ltd 2011 – locality St Helen’s Smelting Co v Tipping 1865 – locality Adams v Ursell 1913 – social benefit and locality Barr v Biffa Waste Services Ltd 2011 – social benefit and locality Robinson v Kilvert 1889 – sensitivity McKinnon Industries v Walker 1951 – sensitivity Christie v Davey 1893 – malice

15 © Sally Russell 2017 Self-test questions Any 3 of the following: Frequency and duration Locality Social benefit or usefulness Seriousness Sensitivity Malice A one-off occurrence may amount to a nuisance when it is a state of affairs (Spicer v Smee) Only a person with an interest in the property can sue and Hunter v Canary Wharf re-established this Resources or means are relevant when D has adopted rather than created the nuisance Abatement is a self-help remedy where C can take steps to eliminate the nuisance Chapter 9 Task 27 Rickards v Lothian

Mason v Levy Auto parts

Hale v Jennings Bros

The material was flammable but was stored near to machinery which was known to get very hot

Task 28 Giles v Walker 1890 D was not liable as he did not bring on the thistles, they were naturally there Rickards v Lothian 1913 D was not liable as water is natural in a basin

Read v Lyons 1947 D was not liable as high-explosive shells were natural in wartime

Mason v Levy Autoparts 1967 D was liable because combustible materials were not natural because of the quantity and the way in which they were stored Read v Lyons 1947 D was not liable as there was no escape as C was on D’s land at the time Gore v Stannard 2012 D was not liable as the thing that escaped was fire not something that D had brought on to the land Cambridge Water Co. v Eastern The Wagon Mound test of foreseeability applies so D is not liable

16 © Sally Russell 2017 Counties Leather 1994 if damage could not have been foreseen

Task 29 Mary is the occupier of land. She has brought something onto her land which is not naturally there (a lamb). The lamb has escaped and caused damage to C’s land (the garden centre). The only question is whether her use of land is non-natural. A lamb is not ‘exceptionally dangerous’ but could be said to be sufficiently ‘mischievous’ to do damage if it escapes. As Mary lives next to a garden centre she would realise that there was a high risk of damage occurring if the lamb escaped. It is also unusual to keep a lamb in a residential property so the rules as restated in Gore v Stannard may be satisfied. Task 30 Here are some case examples added to the principles. D brings onto land – Ryland v Fletcher itself is an example of ‘bringing on’ and Giles v Walker is an example of not doing so Something non-natural – water was found to be non-natural in Ryland v Fletcher itself but not in Rickards v Lothian Which is likely to do mischief – fire was found to be likely to do mischief in Mason and LMS Which escapes onto other land – this was not the case in Read v Lyons because the damage was caused on D’s land Which causes foreseeable damage – Cambridge Water illustrates this part of the rule as it was not foreseeable that the chemicals could cause the loss To property belonging to C – in Gore v Stannard the CA confirmed that what escapes must cause damage to C’s land Self-test questions 1. The facts of Rylands were that a land owner employed a contractor to build a reservoir on his land. The contractors discovered some disused mine shafts but they appeared to be filled in so they didn’t seal them. When the reservoir was filled water flooded through these shafts and caused damage to C’s mine. 2. D was not liable in Transco because the accumulation of water was held to be a natural use of the land 3. Three defences are: a. Statutory authority is where something is permitted under an Act of Parliament b. Act of a stranger is where an unforeseeable act by someone else breaks the chain of causation c. Default of the claimant is where C has failed to do something and this has led to the damage 4. The importance of Cambridge Water is that the HL held the test of foreseeability (as per The Wagon Mound) applied to Rylands (as well as nuisance and negligence) Chapter 10

17 © Sally Russell 2017 Task 31 There is no answer for this task but hopefully you made some notes.

Task 32 In Century, the employee was doing his job at the time, i.e., delivering petrol. In Graham, the employee had been spraying inflammable liquid around as a prank and this was outside the scope of his employment.

Task 33 Jack is an employee so the question is whether he was acting in the course of his employment. Jack’s act can be said to be an ‘authorised act done in a wrongful way’, and also, in the later definition, an act ‘connected with his employment’ (Lister). The trial judge and the CA disagreed in Mattis, so it could be argued either way. The CA said a doorman was expected to use physical force in his work, and as the stabbing was connected to an earlier argument in the club, the club was vicariously liable. The case could be distinguished on the basis that there was no argument at the club in my example; Jack had a personal grudge. However, it is probably more likely that the CA decision will be followed so the club may be liable. Self-test questions 1. In one case against the London bus company a driver was racing. This is a wrongful way (racing) of doing something authorised (driving). In the other, the employer was not liable because driving was not within the scope of his job as a conductor, so it was not authorised. 2. The names of these two cases are Limpus v London General Omnibus Company1862 (where the driver was racing), and Beard v LGOC 1900 (where the conductor was driving). 3. Trotman v North Yorkshire CC 1999 was overruled by the HL in Lister and the new test for establishing whether an employee is within the scope of employment is that the court should consider the closeness of the connection between the nature of the employment and the tort. Chapter 11 Task 34 Case Which defence was used The effect Jones v Livox Quarries 1952 Contributory negligence Reduction in damages Sayers v Harlow 1958 Contributory negligence 25% reduction in damages Barrett v MOD 1995 Contributory negligence 66% reduction in damages Yachuk v Oliver Blais Ltd 1949 Contributory negligence Full liability as the defence failed Smith v Baker 1891 Consent Full liability as the defence failed Gannon v Rotherham MBC Contributory negligence Reduction in damages 1991 Morris v Murray 1990 Consent No liability

18 © Sally Russell 2017 Condon v Basi 1985 Consent Full liability as the defence failed Froom v Butcher 1976 Contributory negligence Reduction in damages

Self-test questions 1. S 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that the court may use its discretion to reduce the damages awarded, ‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’ 2. In Sayers v Harlow 1958, a lady got locked in a public toilet and was injured trying to get out. The court held she was partly to blame and reduced her damages by 25% for contributory negligence 3. The defence of contributory negligence succeeded in Gannon because he was 14 and so was expected to recognise the danger. In Yachuk, he was only 9 and the court held that he should be judged by the standard expected of a 9-year-old child 4. The defence of consent is likely to fail in rescue cases because there is a moral duty to act. Haynes v Harwood is an example 5. It is also likely to fail in employment cases because there is no true consent; an employee may consent to a risk of harm in order to keep a job Chapter 12 Task 35 Damages – an amount of money intended to compensate the claimant Special damages – loss of earnings and expenses to the date of the trial The multiplier – a figure representing the number of C’s likely working years Pecuniary damages – financial loss Non-pecuniary damages – losses other than financial ones Loss of amenity – something which relates to C’s quality of life, such as a hobby or special interest General damages – non-pecuniary losses such as pain and suffering and loss of amenity which must be assessed by the court Task 36 There are several cases you could have chosen. Here are three examples: In Regan v Paul Properties Ltd 2006, C had complained about D’s building blocking his light and he had lost several thousands of pounds in the reduction of value of his property. An injunction helped him because he wanted D’s building stopped rather than an award of money. In De Keyser’s Hotel v Spicer 1914, a partial injunction helped C because it limited the pile-driving to the daytime. In Tetley v Chitty, an injunction was granted to stop the go-kart racing. This helped C because it didn’t just limit the activities, it stopped them altogether. Self-test questions

19 © Sally Russell 2017 1. Special damages are easy to quantify and cover things like damage to belongings, transport and medical costs. General damages are not quantifiable so have to be assessed by the court; these include pain & suffering and any injuries 2. Pecuniary loss is financial loss so would include wages and most special damages. Non- pecuniary loss would be most general damages which are not quantifiable in monetary terms 3. A structured settlement is where the compensation is paid into an annuity and C is paid in regular instalments. These are most commonly used for larger awards or where there is long-term loss, e.g., if C is unable to work again 4. Mitigation of loss is where C is expected to take reasonable steps to minimise any losses 5. An injunction is a court order used to prevent D carrying out some type of act. It is most commonly used in nuisance cases, to stop the nuisance continuing Summary Task 37 If you were clever you kept your AS diagrams; this is similar to Tasks 18 and 19. However here is a list of the principles with a case to illustrate each.

Duty

The loss must be foreseeable – Donoghue There must be proximity between the parties – Bourhill It must be fair, just and reasonable to impose a duty – Hill Breach

The standard expected of D is that of the reasonable person, Blyth. Note, though, the subjective element:

professionals (Bolam/Bolitho)

learners (Nettleship)

children (Mullin)

Add the four factors:

the degree of risk – Bolton v Stone/Maguire v Harland & Wolff plc 2005

the seriousness of potential harm – Paris v Stepney BC1951

whether the risk was justifiable – Watt v Hertfordshire CC 1954

the expense and practicality of taking precautions – Latimer v AEC 1952

Causation

20 © Sally Russell 2017 Consider the following four points

Would the harm have occurred ‘but for’ D’s act or omission? Barnett v Chelsea & Kensington HMC but note also Fairchild v Glenhaven Funeral Services Ltd

Was the harm foreseeable or was it too remote? The Wagon Mound

Was this type of harm foreseeable? Hughes v Lord Advocate

Does the thin-skull rule apply? Smith v Leech Brain

Task 38 There is no answer as your diagrams may be different but hopefully you have a useful revision chart using the cases from Chapters 10 and 11. Chapter 15 Examination practice Task 39 Both the neighbour and Sue may have committed nuisance. Particularly relevant is that the neighbour's noise is ‘continuous’ and that Sue acted ‘in retaliation’. Both these are factors the court will consider when deciding if the act was unreasonable. Both could amount to a nuisance but Sue is the one likely to be found to be unreasonably interfering with someone’s enjoyment of land because she acted with malice, as in Christie v Davey. Tom also may have committed nuisance. Particularly relevant is that although the storm is an act of nature, he left the tree lying there. This suggests that he has ‘adopted’ the nuisance caused by an act of nature, as in Leakey v NT. Secondly, even though it appears to be an isolated incident the tree ‘lying there’ may be a state of affairs, as in Spicer v Smee. Andrew may have committed a tort under the rule in Rylands v Fletcher. As it is a one-off occurrence it is unlikely to be a nuisance. However, it has escaped to ‘the next garden’ so he will be liable under Rylands if it caused damage, as in Crown River Cruises. It is foreseeable that a firework can cause damage, unlike in Cambridge Water. Tony may have been negligent but the scenario suggests that his employer may have vicarious liability for his actions if the passenger is harmed. Tony is an employee so the question is whether he is acting in the course of his employment. The scenario says that he is making a delivery so this is quite likely, as in Century Insurance. However, the words ‘against the orders of his employer’ are also relevant. His employer may not be vicariously liable as he ordered him not to give lifts, as in Twine v Beans Express. On balance, it is more likely that the employer is vicariously liable as the negligent act was the way he was driving and he is employed to drive, so the act is closely connected with his work. In Lister, the test for whether someone was in the course of employment was adapted to the idea of having a close connection, and in Tony’s case the connection is even closer than in Lister. In Graham, the CA said an employer could be liable for authorised acts done in a wrongful way or for unauthorised acts which were ‘so connected with’ acts the employee was authorised to do that they could be deemed to be methods of doing those acts, even though in an improper way. Tony could come within either of these. He is doing an authorised act (delivering) in a

21 © Sally Russell 2017 wrongful way (giving a lift and driving negligently). It could also be said he is doing an unauthorised act (giving a lift while making a delivery) but this is closely connected to his employment as a delivery driver. Theo may have committed a tort under the rule in Rylands v Fletcher. The way he stored the petrol and the fact that there were several gallons will be relevant circumstances in deciding whether it was non-natural use, as in Mason v Levy Auto Parts and LMS International. Examination practice Tasks 40 and 41 There are no answers for these two tasks.

Task 42 Examination paper

(See note with examination paper – full answers are given for questions 2 and 4 and all the tort questions) Question 2 (A01 10 marks)

22 © Sally Russell 2017 the House of Lords followed a decision of the Court of Appeal, and in so doing overruled an earlier decision of its own because it felt it was right to do so in the interests of justice.

In the interests of certainty Lord Bingham thought judges should ensure that there is a clear majority ratio where possible, even if judges disagreed. There may be a dissenting judgment but he felt it important that later judges should be able to find a clear ratio for the principle behind the final decision. Clarity is important because a precedent can only be persuasive if the rules on overruling do not prohibit it. The House of Lords was persuaded by a decision of the Court of Appeal in R v R and refused to follow its own previous decision. That could not have happened the other way round because if there was already a previous decision of the Supreme Court, the CA would have to follow that and not any persuasive precedent.

Question 4 (A03 15 marks)

Precedent is based on the Latin term stare decisis, which means judges should follow earlier decisions. However, judges in the senior courts may want to avoid this rule in order to achieve justice. The law requires certainty, especially in the criminal law, so precedent should normally be followed, but if this would cause unfairness there should also be some flexibility. Unfairness in the law as it stands is one reason a judge may not want to follow an earlier decision. The Supreme Court (SC) can overrule its own decisions by using the 1966 Practice Statement if ‘it appears right to do so’ and if this is the case a judge may want to avoid following a precedent.

In Edwards v Environment Agency 2011, the SC confirmed that it had all the powers previously invested in the House of Lords (HL). So, the powers given to the HL under the Practice Statement have passed to the SC. The words ‘it appears right to do so’ give a wide discretion to the SC to avoid following its earlier decisions. An example is Gemmell & Richards where Caldwell was overruled and all recklessness made subjective. This is one reason the higher courts might not want to follow a precedent, in order to achieve justice. It is necessary to be flexible if justice is to be achieved, and also if an error has been made the senior courts will want to avoid repeating it.

Another reason to avoid following an earlier decision is that the law should adapt to social and technological changes. Parliament cannot easily react quickly to such changes and if the law is outdated there should be a way to amend it. An example of responding to social change is R v R, where the HL decided that it was no longer acceptable that a man should have immunity from raping his wife. Technological advances mean a new law may be needed for a new situation, such as new medical procedures, internet abuse and cyber-crime.

Very few cases reach the SC, so it is important for the Court of Appeal (CA) to be able to avoid following its own earlier decisions. The rules from Young v BAC allow this in certain circumstances, but they are fairly limited.

The CA can avoid following a precedent if there are two conflicting decisions. In this case it can choose which it will follow. A judge may want to avoid a precedent where there are conflicting precedents in the interests of making the law more certain. The CA may also want to avoid a precedent set by itself where the decision is made per incuriam, i.e., it was based on a mistake. It

23 © Sally Russell 2017 would want to avoid following the earlier decision to put right a wrong and correct the law. Both these ways of avoiding following a decision of its own are allowed under the rules from Young.

A judge in a criminal case will want to avoid an injustice where a person’s liberty is a stake. The Criminal Division of the CA therefore has a little more flexibility and is able to avoid following a decision in such circumstances. Another reason a judge may want to avoid following a decision is where the material facts are different. Distinguishing is a way of doing this and it applies to all courts. An example is Wilson, where Brown was distinguished by the CA even though it was a decision of the HL. Both cases involved serious harm suffered during consensual sexual activities, but the judge found material differences. In particular, in Wilson the activity was between a man and his wife. The CA could avoid finding Wilson guilty of GBH by distinguishing the earlier case on the basis that whether such activities occurred outside or within marriage was a material fact.

Another example of distinguishing is Merritt v Merritt 1970. An earlier precedent had been set in Balfour v Balfour 1919 that a financial agreement between a man and his wife was not legally enforceable. The CA distinguished Balfour because in Merritt the husband and wife were living apart. They also wrote down what was agreed and both signed this agreement. This was the material difference and it showed that they intended to create a legally binding contract. The CA wanted to avoid the earlier precedent in order to give effect to what the couple had agreed.

In several cases judges have indicated they would like the law to change but have not done so, preferring to leave that to Parliament. So, judges in the SC and CA might not want to follow a precedent but will do so even if it is within their powers to avoid it. This is because it is recognised that the law should be made by a democratically elected Parliament rather than a judge.

In conclusion, judges might not want to follow a previous decision for several reasons. In particular in order to do justice, correct errors, modernise the law and to distinguish between cases where the facts are different. It is right that the senior courts should have the power to avoid following the earlier law and it is clear that judges usually do so with restraint, and sometimes reluctantly.

Question 5 (A01 10 marks A02 15 marks) Whether a duty of care is owed in a negligence case is based on the neighbour test from Donoghue v Stevenson and the three-part test from Caparo v Dickman. The neighbour test is that you owe a duty to people likely to be closely and directly affected by your actions. This is based on foreseeability of harm and proximity between the claimant (C) and defendant (D) and is similar to the first two parts of the Caparo test. An example of the first is Kent v Griffiths where it was foreseeable that a delay in an ambulance arriving could risk further harm to C. As regards proximity this can be in time, space or relationship. In Bourhill v Young none of these was satisfied because the woman was not at the scene (space) did not see the event immediately (time) and had no relationship to the driver. If she had been nearby there would have been a relationship as road users would owe a duty to each other and pedestrians are people likely to be affected by a driver’s actions. Leaving a five-year old child alone is foreseeably going to risk some kind of harm because children are very unpredictable. Mikaela is ‘looking after’ Amir so she has proximity of relationship as the person caring for him, and she is there at the time. The third part of the test was added in the Caparo case and relates to policy. The court will consider whether it is fair, just and reasonable to impose a duty. This is sometimes more difficult because the court will consider whether it is in the public interest, as in Hill where it was held that the police did not owe a duty to a member of the public. Here there is no reason to exclude a duty because it will not impose a burden on the state nor open the floodgates to claims.

24 © Sally Russell 2017 In deciding if she breached her duty to Amir the court will consider whether Mikaela acted as a reasonable person (Blyth). She will be compared to a reasonable person looking after a young child. It does not say how old Mikaela is or whether she is a professional carer. A professional person is compared to others in that profession when deciding if an act is reasonable, as decided in Bolam. It is unlikely that a reasonable carer would leave a young child alone. Even if she is a trainee or inexperienced carer she will be expected to reach the standard of a reasonably competent one, as was the case with the learner driver in Nettleship v Weston. The court will take into account several factors when deciding on breach. The gravity of the potential harm is one factor. In Paris v Stepney, the standard expected was higher because the man was particularly vulnerable so should have been better protected. This could be the same for a child, so Mikaela should take greater care than would normally be expected. Another factor is the degree of risk and as with duty this involves foreseeability. Again, children are more likely to get up to mischief (as the court noted in Jolley v Sutton BC) so greater care is expected. There is a high risk that Amir could come to harm if left in a garden with a shed in it as sheds often contain dangerous materials, such as weed-killers and pesticides. A reasonable person is expected to take precautions against a risk and, unlike in Latimer v AEC, precautions would be neither costly nor impractical. In Uren v Corporate Leisure 2013 the court said precautions should have been taken against the risk of harm from diving head first into a shallow pool because it would be easy just to ban diving in head first. It would be easy for Mikaela too; all she had to do was take Amir with her when she went to make coffee. It is likely that Uren will be followed and Mikaela will be found in breach of her duty of care to Amir. The final part of proving negligence is to show that the breach of duty caused the harm. The first part is factual causation, which uses the ‘but for’ test. This comes from the medical case of Barnett and asks whether Amir would have been harmed but for Mikaela’s negligence. The answer is ‘no’ because if she had taken him with her he would not have found the slug pellets. Causation in law looks at whether the harm is too remote from the breach of duty and is a question of foreseeability as established in the Wagon Mound. A ship had spilt oil which caught fire and caused oil damage and damage by fire to a wharf. The damage by oil could be claimed but it was not known that the oil could catch fire, so fire damage was unforeseeable and too remote from the breach of duty (spilling the oil). Again Jolley v Sutton is useful, as the court looked at both breach and causation and the case involved children. The court said that children could be expected to do the unexpected. It also confirmed Hughes v Lord Advocate, that if the type of harm is foreseeable the fact that it occurred in an unforeseeable way, or that the consequences were more extensive than could be foreseen, will not affect liability. Thus the exact harm, severe poisoning, does not have to be foreseeable as long as some harm is. As discussed above, it is foreseeable that a child might be inquisitive and suffer harm. The thin-skull rule could also be relevant as Amir is only five so is particularly vulnerable. Even if an adult would not have suffered such severe effects, this will not affect the claim and Mikaela will be liable for the full consequences of her breach, as in Smith v Leech-Brain. Amir is likely to be successful in his claim against Mikaela. Question 6 (A01 10 marks A02 15 marks) Kanye may have a claim under the Occupiers Liability Act 1984. He is a trespasser because he got through the fence. It is arguable the apples are an allurement as in Glasgow Corporation v Taylor and confirmed in Jolley v Sutton LBC, where it was made clear that something attractive to children could bring a child claimant under the 1957 Act. We do not know how old Kanye is but it is unlikely these cases help as it is a private house not a park or council land. Also, he is old enough to walk to

25 © Sally Russell 2017 school so Phipps v Rochester won't apply. The duty to trespassers is more limited than that owed to a lawful visitor. There are three things to show under s 1(3) OLA 1984. The first is that Jack knows of the danger or has reasonable grounds to believe it exists. As we are told that Jack was worried about it this point is satisfied. The second point is that Jack must know of the trespasser or, again, have reasonably grounds to believe in the possibility of trespassers. Here he was worried the children might get in, so even if he doesn't specifically know of them, the reasonable grounds part is satisfied. The final point is that the danger must be one which Jack should reasonably be expected to protect trespassers against. This may be more difficult. However, it seems reasonable to expect him to take greater care either by mending the fence or the shed, or by putting a warning up if he hasn't had time to do that. Jack may argue that the harm was caused by Kanye’s activity rather than by the state of his shed and if he succeeded in this he would not be liable. The courts have made clear that if harm is caused by a person’s voluntary activity rather than the state of the premises then the occupier will not be liable. This has applied to several cases covering various situations and climbing onto a shed to steal apples is likely to be seen as a voluntary activity, as in Tomlinson v Congleton BC and Sidorn v Patel. In Kanye’s case, although his injury was partly caused by his activity in climbing the shed, the difference is that unlike in the cases cited, the shed was in a dangerous state so he can argue that the harm was caused by the state of the premises not his activity. This was the case in Young v Kent CC 2005, where a schoolboy climbed onto a roof at school and fell through a skylight. If a duty is established, it is likely that Jack is in breach of duty as he has not acted as a reasonable occupier. Under s 1(4) he should take ‘such care as in all the circumstances of the case is reasonable’. Taking into account the usual breach factors to establish whether he reached the expected standard we can say that there is a higher than normal risk due to the nearby school. Also, even if would cost a lot to mend the shed properly, it would not cost much to mend the gaps in the fence and this would not be seen as impractical, as was the case in Latimer v AEC. He knows there is a school nearby so should take greater care. As in the case of the semi-blind worker in Paris v Stepney BC, children are more vulnerable so greater care is needed where they may be in danger. It is possible that Jack could use the defence of consent or contributory negligence. The first is less likely to succeed as although under the Act there is no liability for risks ‘willingly accepted’ by Kanye, the court may decide a schoolchild is too young fully to recognise the risk of danger so a lot depends on his age. Contributory negligence is a possible alternative. This is not a full defence but can reduce the amount Jack has to pay to Kanye in compensation. This defence is governed by the Law Reform (Contributory Negligence) Act 1945. S 1(1) of the Act allows the court to use its discretion to reduce the damages awarded in accordance with how far Kanye is seen to be at fault. A case that covers both defences is Ratcliff v McConnell 1999. The court decided the occupier was liable but damages should be reduced because he had contributed to his own injuries. The CA reversed the decision and held that D was not liable because under s 1(6) it was a risk 'willingly accepted'. If Kanye succeeds, at least in part, he will claim compensation for the injury and any related costs. He cannot, however, claim for the torn trousers under the 1984 Act because it only covers personal injuries. Similar points will apply to Ben as he is also trespassing. We established that Jack knew of the danger and that he should have at least taken some precautions but it is less clear whether Jack knows, or has reasonable grounds to believe that someone is in the vicinity as regards Ben. He may not know someone is sleeping in his shed but ‘reasonable grounds to suspect’ is enough and it could be that

26 © Sally Russell 2017 there is some evidence that someone has been using the shed. If this is the case then he should have mended it, or at least locked it up or put up a warning sign. There would be no applicable defences because, unlike Kanye, Ben has neither expressly nor by implication consented to the harm. He has not been contributorily negligent either so Ben will want to make a claim. Question 7 (A01 10 marks A02 15 marks) Examiner’s comment Evaluation questions are extremely wide in potential content. I have therefore not done an essay style answer for this question as much will depend on your approach. Thus the following guide is just that: a guide. You do not need to include everything but this gives you a range of material to choose from. You should pick out those points that make most sense to you so that you can discuss them confidently. I have listed the first part, which is purely explanation, but have done a fuller answer for the second part for the evaluation. There are 10 marks available for explanation (A01): This can be brief but you need to cover most of the following points on nuisance before you can evaluate the tort Private nuisance is an unlawful interference with another person’s use or enjoyment of land. A claimant must have an interest in the land affected by the nuisance (restated by the House of Lords in Hunter v Canary Wharf). This means disputes usually involve neighbours. The defendant may be the occupier of the land or the creator or 'adopter' of the nuisance – Sedleigh Denfield v O’Callaghan. A landlord can be liable for the nuisance of tenants – Tetley v Chitty. Usually liability is for indirect interference such as noise (Sturges v Bridgman) or smoke and fumes (St Helens Smelting v Tipping), but it could include direct interference such as tree roots as suggested in Hunter. The law recognises that there is a difference between a nuisance causing damage and one causing interference with comfort or the enjoyment of land. In St Helens Smelting Co v Tipping, the HL held that where material damage had been suffered, the locality was not relevant. The factors to consider when assessing unreasonableness:  Locality: Sturges v Bridgman, Kennaway v Thompson, Laws v Florinplace.  Duration: Spicer v Smee, De Keyser’s Royal Hotel v Spicer Bros.  Abnormal sensitivity of the claimant: Robinson v Kilvert. See also Network Rail v Morris and note this refers to foreseeability.  Malice: Christie v Davey, Hollywood Silver Fox Farm v Emmett.  Social utility or public policy: Miller v Jackson, but note this rarely succeeds alone (so was ineffective Adams v Ursell/ Barr v Biffa Waste Services Ltd). However, in Miller, although she won her case, no injunction was granted so public policy had an effect at that stage. Possible defences to a claim:

27 © Sally Russell 2017  Prescription: Sturges v Bridgman – but note the defence that C ‘came to the nuisance’ fails (so is ineffective)

 Statutory authority: Allen v Gulf Oil

 Note the effect of planning permission on locality Gillingham BC v Medway Dock/Wheeler v Saunders.

Remedies of injunctions or damages There are 15 marks available for evaluation (A03). There are many ways to approach this so a candidate would only need to choose a few of the following comments but should develop the case examples a little as appropriate.

The tort involves balancing competing interests between neighbours in order to reach a fair compromise. This kind of give and take is an effective way of settling disputes.

One person’s interests can be protected at the expense of the other party where the other party is acting unreasonably and this can tip the balance. The effect of malice by one party is an example and demonstrates how give and take works (Christie v Davey).

It is relatively easy to prove nuisance where there is damage (St Helens Smelting Co v Tipping) also the test of unreasonableness gives the court flexibility to apply the principle of give and take between neighbours making the tort an effective tool.

The importance of locality in determining unreasonableness gives the courts flexibility depending on the area, so that something is less likely to be a nuisance in an industrial area. This is also seen in the case of planning permission. This is no defence but it is a factor to consider on the reasonableness of the interference and it may succeed if it has caused a change in the neighbourhood (Medway Docks).

One area where the tort is less effective is with the defence of prescription. The period only starts when the nuisance starts so D cannot claim 20 years use and argue that C ‘came to the nuisance’. This seems unfair where someone has been doing something for a long time without anyone complaining, as was the case in Sturges v Bridgman. It means that C can effectively ‘self-inflict’ the nuisance by getting nearer to it and then complaining.

Defences can be used to take account of the give and take nature of the tort as an injunction may be refused if it adversely affects one of the parties too much (Miller v Jackson).

A compromise is often reached and this makes the tort of nuisance more effective than some other torts which are based on an all or nothing concept. This is particularly true of the remedy of an injunction as this can be a partial injunction rather than a full one prohibiting the activity altogether. An example is seen in Kennaway where a partial injunction was granted to restrict the activity and thus reduce the nuisance. However in Miller v Jackson the court refused an injunction and the cricket was allowed to continue on the basis that it was in the public interest. The law was ineffective as far as she was concerned because financial compensation did not help and the nuisance continued.

28 © Sally Russell 2017 In Miller v Jackson no injunction was granted. In Kennaway v Thompson a partial injunction was granted and in Tetley v Chitty a full injunction was granted. This not only makes the law uncertain (and thus ineffective) it seems the courts are deciding the issue to some extent on policy considerations. It was not felt appropriate to grant an injunction in Miller because cricket is a social activity. It could be argued that plenty of people like go-karting too but this activity was stopped by the court. The Kennaway decision is perhaps the most acceptable as it is a compromise and much more in line with the ‘give and take’ idea of nuisance. Granting a partial injunction meant the activity could continue but the nuisance was reduced.

One argument against the tort being effective is that liability in nuisance is not straightforward because trying to balance competing interests may lead to complexity.

The limitations imposed by the courts regarding who can sue are arguably ineffective as they do not allow people to sue unless they have a legal interest in land as (Hunter v Canary Wharf). The case of Khorasandjan v Bush had recognised a claim by someone without such an interest but this was overruled by Hunter. Arguably, it should be enough that someone lives in the affected property. Hunter highlights another argument that the tort is ineffective. It seems strange that interference with television reception is not actionable. This is something that affects people’s everyday lives. It certainly affects the ‘use and enjoyment’ of a property. For many people not being able to watch television would be a major problem. The Network Rail case seems to confirm the view in Hunter that the law of nuisance does not protect such amenities, although this case was partly based on lack of foreseeability and sensitivity of the claimant.

The wealth of the defendant is not usually relevant in tort but D’s resources may be taken into account in nuisance cases. This was seen in Leakey v National Trust and Wandsworth LBC v Railtrack. It seems fair in certain cases that you should only be expected to do what you can reasonably afford to do, but is this fair to C? Should a claimant living next to a pop star have a different right to one living next to a person with limited means?

The flexibility that the tort of nuisance allows the courts may mean it is effective in some cases. However, the test for reasonableness takes into account so many different issues that it is unnecessarily complicated. It could be integrated into negligence but this relies on the proof of breach so would exclude many nuisance cases, which indicates the tort of nuisance is more effective. This raises the possible unfairness to D though. It is arguable that a person should not be liable for natural dangers (Holbeck Hall Hotel v Scarborough BC) or for the actions of a third party, as in Sedleigh Denfield and Tetley v Chitty.

It may be better for Parliament to act and set the law out more clearly in a statute. There are already statutes dealing with matters such as nuclear power and pollution and statutory nuisance is probably a more effective control of most modern nuisances. This suggests that private nuisance struggles to be effective in a modern world with so many possible sources of nuisance.

In conclusion, the statement has some accuracy, in particular the tort does allow for flexibility so the courts can compromise between the parties. However, there are still too many examples of the tort of nuisance being ineffective and it is perhaps time that it was reformed.

29 © Sally Russell 2017 Question 8 (A01 10 marks A02 15 marks) Stan may be able to make a claim in nuisance if he can show unreasonable interference with his land. In Hirose Electrical UK Ltd v Peak Ingredients Ltd 2011, the CA held that nuisance was where someone had ‘unreasonably interfered with the claimant’s enjoyment of the premises’. In Coventry Promotions v Lawrence 2014, the SC defined nuisance as an act or omission which causes ‘an interference with the claimant’s reasonable enjoyment of his land’. Reasonableness is decided by balancing several factors. One of these is frequency and duration and it would seem that the bees are a permanent problem. Another factor is locality and where the nuisance happens will be relevant to assessing reasonableness. Much depends on the type of area and this is not clear. However, a large garden and a house being built sounds more like a residential area than an industrial one, which makes nuisance easier to prove. Something that is a social benefit may not be a nuisance but this is rarely enough alone and keeping bees is unlikely to be sufficiently beneficial for the wider public. In Barr v Biffa Waste Services Ltd 2011, residents claimed in nuisance because of smells from a landfill site. The CA restated that the relevant control mechanism was whether or not there is reasonable use of the land in all the circumstances. On the facts, especially considering the residential character of the area, there was a case in nuisance. It is likely that this case would be followed here if it is a residential area. One other factor is malice. In Christie v Davey, both neighbours were causing a nuisance but one had acted in malice and this tipped the balance in the other neighbour's favour. This could harm Stan’s claim because he has acted in malice. The requirement that the claimant must have an interest in land as re-established in Hunter v Canary Wharf is satisfied assuming that Stan owns the house or is a tenant. Peter could try to argue that Stan had 'come to the nuisance' but this is unlikely to succeed, as in Sturges v Bridgman. Peter could claim against Stan in nuisance because ‘takes to having’ sounds as if Stan has bonfires quite often and frequency is a factor for proving unreasonableness. It is not clear but it may not be often enough, as in Bolton v Stone where cricket balls only went over the fence a few times a year so the nuisance case failed. However, it also says that the washing has been damaged ‘several times’ so it may be more regular, as in Miller v Jackson where cricket balls landing in the garden were held to be a nuisance. If so the other factors that are important here are that physical damage has occurred and the sensitivity of Peter’s plants. It was established in St Helen’s v Tipping that if physical harm occurs this makes the locality unimportant, so even if the area is not residential this will not affect his claim. In Halsey v Esso Petroleum Co, the claim involved damage to washing and was successful. As regards the plants, if normal plants would not have been harmed the claim will fail on the sensitivity issue (Robinson v Kilbert). However in McKinnon Industries v Walker C was able to obtain compensation in respect of damage to some delicate orchids because normal plants would also have been damaged. If normal border plants would have been damaged then the fact that the Peter’s border plants are sensitive will not affect the claim. The fact that Stan acted in malice may have an effect on the claims, as the actions of both parties will be considered. This was the situation in Christie v Davey, where both parties were creating a possible nuisance but the malice of one party tipped the balance so his claim failed and the neighbour’s claim succeeded. On even more similar facts the malice that occurred in Hollywood Silver Fox Farm v Emmett made the firing of guns near the breeding foxes unreasonable and so a nuisance. Thus Peter may succeed in his claim because of Stan’s malice.

30 © Sally Russell 2017 If either claim succeeds Stan and Peter will want an appropriate remedy. This would be an injunction to prevent the nuisance. Although an injunction used to be the normal remedy, this may no longer be the case. In Lawrence v Fen Tigers Ltd (No 2) 2014, the SC suggested that the principle that an injunction should be the remedy unless there are exceptional circumstances was out of date. However, it is possible that as damages will not help Stan and, unlike Miller v Jackson, the bee- keeping has limited social benefit, an injunction may be awarded. Also, it would be hard for a court to assess any loss in financial terms in respect to Stan. The court may award a partial injunction as in Kennaway v Thompson. This could be to keep the bees at a distance or only let them out at certain times. Peter would want an injunction to stop the bonfires and if the damage to the plants is accepted as a nuisance he can also claim monetary compensation in the form of damages. In conclusion, both parties have a potential claim but, as in Christie v Davey, the fact that Stan acted in malice may tip the balance. If so his claim could fail. Peter’s could succeed, subject to the sensitivity of the plants. Question 9 (A01 10 marks A02 15 marks) Tim can claim under the rule in Rylands v Fletcher if the situation meets the criteria established in that case and restated more recently in Gore v Stannard. The criteria were originally that D brings onto the land something that is likely to do mischief if it escapes, and it does escape and causes damage. The final requirement is it is non-natural. Gore clarified these, making clear that it was a land-based tort so an interest in land was necessary, as stated by the HL in Transco. In Gore the CA added that D must know that there was a high risk of danger or mischief if the thing should escape. Further, the CA confirmed that non-natural meant the use of land had to be ‘extraordinary and unusual’ having regard to all the circumstances, as had also been stated in Transco. Bringing onto land is reasonably straightforward, for example the water in Ryland v Fletcher itself. The thing itself does not need to be dangerous (or likely to cause mischief), just dangerous if it escapes. Non-natural will depend on the circumstances. Water was held to be non-natural in Ryland v Fletcher but not in Rickards v Lothian where it was in a residential property. In the latter case the HL said one must look at all the circumstances, and these will include time, place and normal practice. Water was again held to be natural in Transco even though it caused subsidence in neighbouring land. In Read v Lyons the manufacture of high-explosive shells in wartime was natural use in the circumstances. That the circumstances are relevant was confirmed in Mason v Levy Autoparts 1967. D kept large quantities of petrol, paint and other combustible materials. They ignited and the fire spread to C’s premises. In deciding that this was non-natural use the court held that the relevant matters to consider were the quantities of combustible material, the way in which it was stored and the character of the neighbourhood. This ties into the ‘likely to do mischief’ requirement. Fire was found to be likely to do mischief in Mason because of the way the materials were stored. This was confirmed in LMS where flammable material was stored near machinery which was known to get very hot and D was liable for the fire which escaped and caused damage to neighbouring land. Mary is the occupier of land and she has brought something onto her land which is not naturally there which is the fuel and tyres. However, the above cases will be relevant because although the fire has escaped, it was not the fire that Mary brought onto her land, it was fuel and tyres. In Gore

31 © Sally Russell 2017 the CA held that what escapes must be the thing brought onto the land and likely to cause damage, so if this case is followed Tim may not succeed. However, it is possible the rule will still apply where the material accumulated, here the fuel and the tyres, is itself likely to catch fire, as was the case in Mason and LMS but not Gore. If that is the case Mary may be liable. She has stored the tyres near to the fuel and she is also welding near enough for a spark to reach these materials. In LMS the escape of fire came within the rule because the storage was not normal and the materials were likely to catch fire. This case is similar; the fire has escaped and caused damage to the garden centre. There should not be a problem in Tim establishing that the damage was foreseeable. Cambridge Water illustrates this part of the rule as it was not foreseeable that the chemicals could cause the loss so the claim failed. In Mary’s case it is foreseeable that storing fuel and tyres together, added to the fact that she was welding nearby, could cause damage to neighbouring land. Despite a claim for personal injury succeeding in Hale v Jennings, in both Transco and Gore it was made clear by the HL and the CA respectively that damages for death and personal injury were not recoverable under the rule in Rylands. Tim is therefore unlikely to be able to claim for his burns under the rule (although he could have a claim in negligence).

In conclusion, whether Tim succeeds in his claim for the damage caused to his plants depends on whether Gore or Mason is followed. It is perhaps more likely that Mason will be followed as the circumstances are similar, in which case Tim’s claim will succeed. Question 10 See Question 7