LEVEL 3 - UNIT 5 – LAW OF SUGGESTED ANSWERS - JUNE 2012

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2012 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.

SECTION A

1. An example of nuisance might be either noisy neighbours or the burning of rubbish either of which interfere with the claimant’s enjoyment of their property. An example of trespass could be the unauthorised entry of one person onto the land of another, assault or even damage to goods.

2. The neighbour test formulated by Lord Atkin in the case of Donoghue v Stevenson [1932] requires defendants to take reasonable care to avoid acts or omissions likely to injure their neighbour. Their neighbour is anyone so closely and directly affected that they should be in the defendant’s contemplation when directing their mind to the acts or omissions in question.

3. The policy considerations which have led to the courts seeking to restrict claims for psychiatric injury include the fear of fraudulent claims, the difficulty of establishing a causal connection between a negligent act and the claimant’s suffering and the fear of opening the floodgates to similar claims. Any two of these considerations could have been used.

4. The case of Roe v Minister of Health [1954] provided that, when considering the skill and knowledge of the defendant, they should be judged objectively, that the defendant is expected to have the intelligence and general knowledge of a reasonable person with his skills and that only the state of knowledge at the time of the incident should be taken into account and not the state of knowledge at any later time.

5. (a) Either of the tests to establish causation in fact could have been utilised in this answer, namely the “but for” test referred to in Barnett v Chelsea & Kensington HMC [1969] or the “material increase in risk” test from McGhee v National Coal Board [1973]. An explanation of the test referred to should also have been given. With regard to the “but for” test this could have been that the harm would not have happened but for the Page 1 of 6 actions of the defendant and for the “material increase in risk” test, it could have been stipulated that the defendant must have made a substantial contribution to the risk of harm by his actions.

(b) To establish causation in law the appropriate test would be the test of remoteness set out in The Wagon Mound (No.1) [1961] which requires that the type of harm suffered by the claimant should have been reasonably foreseeable.

6. A wrongful act authorised by the employer, a lawful act authorised by the employer but carried out in a wrongful and unauthorised manner or a close connection between the job and the tort.

7. An exclusion clause seeks to exclude liability completely whereas a limitation clause merely seeks to limit the extent of the defendant’s liability.

8. The main purpose of in tort is to put the claimant back into the position he would have been in had the tort not occurred.

9. Special damages.

SECTION B Scenario 1 Questions

1. (a) A good answer would have identified and explained the need for a . The explanation could have been by reference to the neighbour test or the three part test from Caparo v Dickman [1960]. It would then have gone on to identify the need for a breach of that duty by reference, perhaps, to the reasonable man test from Blyth v Birmingham Waterworks (1856). The answer should then have gone on to identify the need to establish causation with an explanation of both causation in fact (the but for test) and in law (remoteness). Relevant case law could have included Donoghue v Stevenson [1932], Caparo v Dickman [1960], Blyth v Birmingham Waterworks (1856), Barnett v Chelsea & Kensington HMC [1969] or The Wagon Mound (No.1) [1961].

(b) The answer to this part of the question required application of the law relating to duty of care, breach of duty and causation. Thus it could have been stated that:

A reasonable person in Bea’s position should have been able to foresee harm to Amy if Bea was negligent Proximity exists as Amy and Bea were in the same race Probably no policy reason why a duty of care should not exist A reasonable person in Bea’s position would probably have tied running shoe laces properly and therefore not tripped Amy would not have been injured but for Bea tripping The type of injury to Amy was probably a foreseeable result of any breach of duty by Bea

Where appropriate, credit would have been given for reasoned answers to the contrary.

2. (a) (i) & (ii) Where a second injury occurs when a claimant is doing something he would not have been doing had it not been for the first injury, the original tortfeasor will normally remain liable. Here, Bea would, of course, be liable for the original injuries to Amy’s wrist and leg. Page 2 of 6 Also, Amy would not have been in hospital had it not been for the original accident. A relevant case here could have been Baker v Willoughby [1970]. A good answer would then have identified the issue of a chain of causation and that there is a possible break in the chain here. It would then have gone on, however, to show that the possible break (Dr Charles’ failure to order the correct x-ray) is unlikely to break the chain of causation as courts are reluctant to find that medical treatment does so. Bea is likely to remain liable for the full extent of Amy’s injuries. A relevant case could be Webb v Barclays Bank plc & Portsmouth Hospitals NHS Trust [2001].

(b) A good answer here would have identified the possible defence of volenti non fit injuria or consent. It would then have gone on to explain consent, i.e. that no harm is done to a willing person. Relevant points which could have then been made are:

Consent is a full defence It can apply to voluntary participants in a sporting event Here, Amy was a competitor in a race Bea may therefore be able to rely on the defence – although credit would have been given for a reasoned argument either way.

Relevant cases could have included Murray v Harringay Arena [1951] or Condon v Basi [1985].

It would also have been possible in this answer to refer identify the partial defence of contributory and to apply this to the scenario.

3. The general damages Amy might be able to recover here are damages for:

Pain and suffering (her broken wrist and leg) Future loss of earnings (at least £30,000 p.a. less £20,000 p.a) Loss of amenity (inability to participate in athletics)

4. A good answer here would have identified vicarious liability and explained this as meaning that an employer is liable for the of an employee in the course of his employment. Here, Dr Charles is an employee and therefore the hospital could be held liable. Dr Charles failure to order the correct x-ray resulting in him missing the break would amount to the tort of negligence. A relevant case could be Cassidy v Ministry of Health [1951].

Scenario 2 Questions

1. (a) A good answer would have identified the reasonable man test and explained that negligence is the omission to do something that a reasonable man would do or doing something that a reasonable man would not. As Ed’s presumably has a special skill, the Bolam test could also have been referred to. It would have stated that the test is objective and that a reasonable person would decide whether the harm was reasonably foreseeable. A relevant case could be Blyth v Birmingham Waterworks (1856).

(b) A good answer would have stated that a reasonable person would have foreseen the likely harm to Daljit and that the risk is greater to Daljit Page 3 of 6 because she was not adequately trained in the use of the packaging machinery. A relevant case could have been Paris v Stepney BC [1951].

(c) A good answer would have identified the defence of volenti non fit injuria or consent. It would then have gone on to explain that the defence means that no harm is done to a willing person. It would then have set out a number of the following points: It is a complete defence Consent must be freely given Consent is unlikely to be allowed as a defence against an employee As Daljit is an employee it is unlikely to be a valid defence here A relevant case could be Smith v Baker (1891)

It would then have gone on to identify the second possible defence of contributory negligence and explained this by stating that it applies where, for example, a claimant is partly to blame. It would then have set out a number of the following points:

It is a partial defence If successfully pleaded, damages will be reduced It is unlikely to be allowed against an employee As Daljit is an employee it is unlikely to be a valid defence here A relevant case could be Davies v Swan Motor Co [1949].

The Law Reform (Contributory Negligence) Act 1945 could also have been mentioned.

2. (a) Here the need for causation in fact (the but for test) should be identified. The test should then be either explained (injury would not have occurred but for Fiona’s negligence) or applied (Daljit’s injuries would not have happened but for Fiona’s negligence). A good answer would then go on to consider the need for causation in law (the remoteness test). Again, this test should be explained (type of injury should not be too remote) or applied (the type of injury suffered by Daljit should have been reasonably foreseeable). Relevant case law might have included Barnett v Chelsea & Kensington HMC [1969] and the Wagon Mound (No.1) [1961]

(b) Here, the possible break in the chain of causation should be identified in that Daljit’s decision not to have her finger sewn back on might be a break in the chain of causation. However, the thin skull rule could apply here (Daljit’s morbid fear of operations) and Ed’s might therefore have to take their victim as they found her. If so, they are likely to remain liable for the long term loss of Daljit’s finger. A reasoned argument to the contrary would have been given credit. Relevant case law might have included Smith v Leech Brain [1962].

It would also have been possible in this answer to discuss the partial defence of contributory negligence. If this option had been chosen a good answer would have explained that contributory negligence leads to a reduction in damages, applied the law to the scenario but explained that contributory negligence is not generally available as a defence to an action by an employee. A relevant case could have been Fitzgerald v Lane [1988].

3. Vicarious liability should be identified and explained (employer may be liable for the torts of employee). There has to be: Page 4 of 6 An employer/employee relationship Commission of a tort In the course of employment

Here Fiona was an employee of Ed’s and she was working in the course of her employment. Her instruction to Daljit to work in the packaging department without adequate training was a tort. A conclusion should then have been reached as to whether or not Ed’s is liable. A reasoned argument either way would have been given credit. A relevant case could be James v London Borough Council of Greenwich [2008].

4. The non-pecuniary general damages Daljit may be able to recover are damages for pain and suffering for her injury and for loss of amenity due to her inability to pursue her hobby.

Scenario 3 Questions

1. (a) A good answer would have explained that the case of Caparo v Dickman [1960] set out a three part test for determining whether or not a duty of care is owed. It would have identified and explained the test as follows:

Foreseeability – would a reasonable person in the Defendant’s position reasonably have foreseen that the claimant might be injured Proximity – is there a form of relationship between the parties Just and reasonableness – is there any public policy reason why there should be no duty owed

Other cases could have included Smith v Littlewoods [1987], Home Office v Dorset Yacht Co [1970] or Hill v CC of W Yorkshire [1988].

(b) Application of the three part test was required here:

A reasonable boat owner in George’s position would reasonably have foreseen that he was unfit to take the boat out and that Hansa might be injured George, as boat owner, and Hansa, as passenger, were reasonably proximate There is no policy reason why George should not owe a duty of care

2. It must be just and reasonable for a duty of care to be imposed. The courts are reluctant to impose such a duty on public authorities. Here, the coastguard service is a public authority and, as such, the coastguards are unlikely to be found to owe a duty of care. Relevant cases might include D v E Berkshire Community Health NHS Trust [2005] and Kent v Griffiths [2000].

3. A good answer would identify volenti non fit injuria or consent. It would then explain volenti as no harm is done to a willing person. It would then go on to state:

Volenti is a complete defence Consent must be freely given Here, Hansa got into the boat of her own free will Volenti is more likely to succeed in extreme situations George had been drinking heavily; defence is likely to be accepted A relevant case could be Morris v Murray [1990]

Page 5 of 6 4 (a) Limitation periods are laid down by the Limitation Act 1980. The normal limitation period for tort is 6 years but personal injury claims must be brought within 3 years of either the date of injury or the date of knowledge. Where a claimant dies within the original 3 year period, a fresh period begins. As Hansa died on 30 June 2009 a fresh period began then and the estate has to commence an action by 30 June 2012.

(b) After the relevant limitation period a claim becomes statute barred.

5 (a) (i) The estate can claim, as special damages, Hansa’s funeral expenses, actual expenses such as hospital or medical expenses and her loss of earnings both from the Kempston HA (£25,000 p.a.) and the sale of ornaments (£1,000 p.a.) to date of death.

(ii) The estate can claim, as general damages, pain and suffering to the date of death (hypothermia) and loss of amenity (enjoyment of looking after children/hobby).

(b) (i) Dependants may claim. Here the dependants are Ken and the children.

(ii) They may claim for their own financial loss (loss of Hansa’s income), possibly loss of services (although Ken looks after the home and family) and emotional support. Ken may also claim bereavement damages of £11,800.

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