Chief Examiner’s Report

The purpose of the report is to provide feedback to centres and candidates on the candidates’ performance in the examination with recommendations about how any issues identified may be addressed.

The target audience for this report are centre tutors and candidates. The report should be read in conjunction with the Suggested Answers for the examination.

Unit Name: Level 6 Unit 13 Law of

Exam Session: June 2017

CANDIDATE PERFORMANCE OVERALL

131 students sat the Law of Tort examination on this occasion. The overall pass rate was 62%, with 8 candidates achieving a merit, and 3 candidates receiving a distinction.

Overall performance was improved compared with recent exams (January 2017 – 56%, June 2016 – 44%, January 2016 – 49%) whilst being significantly lower than the June 2015 examination (73.5% passed), though this exam had an exceptionally high success rate. As previously noted, the high success rates seen in June 2015 had been a result of candidates adopting good examination technique, but more particularly the candidates had revised sufficiently to answer the questions in greater detail and analytical depth. Many candidates in June 2015 were therefore, in all likelihood, able to avoid questions that might have been perceived to be ‘more difficult’ having revised sufficiently widely to ensure they had a choice when it came to question selection.

It is inevitable that the commentary contained in a Chief Examiner’s Report will tend to focus on what candidates did less well, in the hope that the feedback will be acted upon in future examination sessions. The details that follow should therefore be read in the overall context of a generally very positive performance on the part of many candidates in the June 2017 paper. It was very pleasing to see a significant rise in the pass rate on this occasion and both Centres and candidates are to be congratulated for their well deserved success.

There was a slight preference for answering the problem questions in this exam. Undoubtedly, some of the essay questions were perceived as being ‘more difficult’. Essay questions at level 6 are designed to enable candidates to pass with knowledge of the law in the area concerned, but they must also contain an evaluative element to allow candidates to demonstrate Level 6 attainment, and to differentiate stronger candidates. Thus questions tend to focus on a specific area of the syllabus and/or require discussion of current problems/developments in tort law. It seems likely that this specificity and the need for interpretation of some of the essays put some students off answering them at this sitting.

Centres and candidates are referred to the specific commentary (below) in relation to each question on the paper as well as the Suggested Answers. This should help tutors and learners gauge the level of knowledge and understanding necessary to succeed in a formal written assessment which is designed at the level applicable to final year undergraduate learners. For example, many candidates were unprepared to deal with essay questions focusing on specific aspects of liability e.g. novus actus interveniens and breaks in the chain of causation, or recent developments in the law relating to vicarious liability. Instead it was common to find candidates regurgitating learned revision notes covering all aspects of negligence liability (in particular, the circumstances in which a court might be prepared to recognise a in novel fact situations) and which covered the examined areas only briefly and at a wholly superficial level.

For the avoidance of doubt, in relation to the Law of Tort syllabus Learning Outcome 4, candidates can expect to see questions focusing on specific aspects of negligence liability such as breach of duty, causation in fact and remoteness of damage. In relation to ‘duty of care’, questions may focus on a single specific area where public policy plays a significant role in determining the existence of a duty e.g. pure economic loss, psychiatric harm, public body liability, omissions etc. Candidates who are unable to analyse specific aspects of

Page 1 of 12 negligence liability or specific ‘duty of care’ situations in detail are unlikely to be able to pass questions designed to assess this very important area of the syllabus.

Candidates answering problem questions often did not adopt the IRAC (or similar) technique, and individual claims were sometimes not analysed separately with candidates attempting to discuss several claims simultaneously. It was very common to find candidates regurgitating a ‘block of law’ at the start of their answers, including rules that were not relevant to the facts of the problem, followed by very brief and superficial application of the law to the facts. The use of supporting authority was sometimes seen as entirely optional: it was not uncommon to find scripts almost entirely devoid (or in some cases entirely lacking in the use) of case law.

As with all the recent tort exams going back to June 2015 exams, one of the most pleasing aspects of the responses to this paper was that the vast majority of candidates maximised their potential by adopting good examination technique in answering four questions and by allocating equal time to each question. Very few candidates failed to answer four questions and comparatively few wrote only a brief final answer.

SECTION A

General points concerning essays

The best essays were written by candidates who had clearly spent time planning their responses in order to address the specific focus of the question. These candidates were able to develop a ‘running commentary’ enabling the reader to understand how each point made related to the essay title, thus enabling the candidate to provide a more explicit answer to the question. For example, the best answers to Question A4 were able to demonstrate how the elements of defamation, the defences and recent legal and procedural reforms under Defamation Act 2013 aim to balance the reputational interests of claimants with the media’s right to freedom of expression.

There were a significant number of candidates who insisted on reciting apparently pre- learned passages, revision notes or sometimes complete essays, concerning the general elements of negligence liability in their essay responses, irrespective of the context (e.g. the approach for determining the existence of a duty of care in novel-fact accident situations running from Donoghue v Stevenson through to the current Caparo test, breach of duty, causation and remoteness of damage). Such passages were often encountered in Questions A1, A3 as well as Question B2. It is vital that candidates read the questions carefully and take time to plan the content of their answers in order to focus on what is relevant. For example, answers to Question A1 often summarised the rules of causation generally, rather than focus on those rules concerning a break in the chain between the defendant’s negligence and the loss suffered by the claimant. Answers to Question A2(a) often discussed the long-established rules concerning the existence of an employment relationship for the purposes of determining vicarious liability, rather than recent developments in non- employment relationships (i.e. relationships ‘akin’ to employment). Answers to Question 3 often discussed the tort in Wilkinson v Downton (intentionally/recklessly causing indirect physical or psychiatric harm) in addition to the rules relating to negligently inflicted psychiatric harm.

As with previous examinations in this subject, very few candidates were able to develop critical commentary on the law in key areas. The knowledge and skills required to develop and demonstrate critical evaluation are essential at Level 6, and centres generally need to do more to encourage their candidates to think critically about the law, its policy objectives and whether particular adequately protect the interests they are designed to safeguard.

In some areas (e.g. negligently inflicted psychiatric harm) there was widespread inaccuracy in discussion of the law. This partly prevented candidates from being able to engage in a critical analysis of the rules. In a problem question on psychiatric harm, the errors frequently made by candidates would have prevented an accurate analysis of the facts.

Page 2 of 12 Finally, where questions require a description of the current law, candidates should avoid historical discussion of legal rules that no longer apply unless such material would help provide critical analysis of the law in its current form. For example, candidates often discussed the development of a test for a duty of care in novel fact negligence situations stating from Donoghue v Stevenson (1932), Anns v Merton LBC (1977) and finally Caparo v Dickman (1990). Such summaries were sometimes encountered in Questions A1, A3 and B2. This commentary prevented candidates from covering relevant, creditworthy material. In Question A3, candidates often wasted time discussing the historical development of the rules concerning negligently inflicted psychiatric harm, referring to cases such as Dulieu v White & Sons (1901), Hambrook v Stokes Brothers (1925) and Bourhill v Young (1942). However, a natural starting point for the essay would have been a discussion of the current rules concerning the distinction between primary and secondary victims arising from Alcock v Chief Constable of the South Yorkshire Police (1991), Page v Smith (1995) and White v Chief Constable of South Yorkshire Police (1999). Selective reference to older case law might have followed from this initial discussion. It was also common for candidates to refer to the former ‘direct consequences’ approach in Re Polemis (1921) before discussing the current remoteness of damage test in negligence from The Wagon Mound (No.1) (1961). The former test from Re Polemis did not need to be discussed in any of the questions concerning negligence liability on this paper as these questions focused on the current law.

SECTION B

General points concerning problem questions

The best candidates displayed good technique when approaching the problem scenarios by splitting up their scripts logically so as to deal with the different possible claims under separate headings. However, a significant number of candidates failed to deal with each claim separately, attempting to discuss several potential claimants simultaneously (e.g. Peter, Quinn, Richard and Sarah in B4). This often prevented them from identifying the specific issues affecting each possible action.

Insufficient knowledge of the detailed elements required to establish liability (and relevant defences) in areas such as trespass to land, battery and false imprisonment sometimes prevented candidates from spotting the main issues pertaining to each potential claim (e.g. question B1). Insufficient or inaccurate knowledge of the law effectively penalised candidates twice when answering a problem question: a rule not quoted (or correctly quoted) cannot be related to the facts of the scenario in order to predict legal liability.

A significant number of candidates tended to provide a large ‘block of law’ at the beginning of their answers (sometimes including irrelevant rules of law which did not arise for discussion according to the facts) before going back and applying these principles in relation to each claim. This approach tended to result in candidates running out of time and almost invariably caused the candidate to omit to apply one or more of the relevant legal tests the second time around. Many candidates needed to develop their problem-solving technique by adopting the IRAC approach (or similar). It was common to find candidates discussing the law and their conclusions as to liability without stating the reasons for these conclusions.

As with part (a), candidates are reminded that they must read the question instructions carefully when planning their responses to problem questions. For example, question B1 required discussion of liability in trespass. Thus it was not necessary to discuss potential liability under the Occupiers’ Liability Act 1984 as many candidates did when considering Colin’s trespassery entry to Amy’s land. Question B2 required discussion of negligence liability. Many candidates inappropriately introduced analysis of Henry’s liability under the tort in in part (b). Question B4 required candidates to consider Nancy’s liability and not that of her daughters as potential co-occupiers.

In analysing problem questions, candidates are also warned against slavish adherence to check-lists. Check-lists are undoubtedly a useful tool for structuring a candidate’s thinking when analysing a problem-style question, but generally candidates need to be more selective in the legal rules/elements of a tort and related defences chosen for discussion. More time should be spent discussing those elements that, according to the facts of the

Page 3 of 12 problem, might be more difficult for the parties to establish, with relatively little time taken to discuss those elements necessary for liability (or to avoid liability) that will not be difficult for the parties to prove in the circumstances described.

In relation to negligence liability, it is important to remember that problem questions are often based around scenarios in which decided cases establish the existence (or non- existence) and scope of any duty of care. Often the starting point is therefore to consider similar past cases: it will rarely be necessary or relevant to consider the Caparo formulation in the Law of Tort exam, except insofar as the test may apply to certain negligent misstatement cases. Discussion of the Caparo test and its application was particularly common in question B2.

Candidates are reminded that the Caparo formulation describes a set of thought processes rather than a test that can be readily applied to a specific set of circumstances. Lord Bridge was at pains to point out in Caparo that concepts such as ‘proximity’ and ‘fairness’ are merely convenient labels to attach to features of a situation where a duty of care may be recognised. As Lord Toulson, who delivered the majority judgment in Michael v Chief Constable South Wales Police [2015] UKSC 2 pointed out (at para 106), the 3-part test should not be taken as a blueprint for deciding cases involving novel facts, even though this has sometimes occurred in practice.

CANDIDATE PERFORMANCE FOR EACH QUESTION:

SECTION A

Question A1 (novus actus interveniens: circumstances in which the chain of causation in negligence might be broken)

Just under half of all candidates attempted this question. The essay was generally poorly answered and resulted in the lowest average score for all questions on the paper.

The question concerned situations where the claimant suffers a loss as result of the defendant’s negligence but a subsequent, unrelated event occurring before the trial makes that loss even worse. The question is usually whether the later event amounts to a new and independent cause (a novus actus interveniens) that breaks the chain of causation so as to prevent the defendant from being held liable for the claimant’s increased loss.

There were some very good responses in which candidates made excellent use of case law to illustrate the circumstances in which a novus actus might occur, and the precise (and varying) effect on the defendant’s liability to pay for the long-term effects of the injuries originally inflicted.

Many candidates, however, did not understand the precise focus of the question and repeated apparently pre-learned revision notes covering all elements of negligence liability including duty and breach. For these candidates, any discussion of novus actus interveniens situations was often limited and merely incidental. A large number of candidates discussed various aspects of causation such as the ‘but for’ test and its application/modification in cases where there are multiple possible causes of the harm suffered by the claimant. There was also widespread coverage of the rules concerning ‘remoteness of damage’. Such unfocused discussion achieved little credit. There was generally little attempt to articulate the precise circumstances in which the chain of causation between the defendant’s negligence and the harm suffered by the claimant might be broken, and limited use of relevant case law.

Candidates often ignored the instruction to consider the precise effect that a novus actus interveniens might have on the defendant’s liability. Those that addressed the point often considered that a novus actus would extinguish the defendant’s liability altogether, and did not consider that such an event might simply prevent the defendant from being liable for the claimant’s increased loss. Few candidates considered whether the defendant should be held responsible for the long-term effects of the claimant’s original injuries after being aggravated by a novus actus interveniens, and the contradictory conclusions arising from cases such as Baker v Willoughby (1969) and Jobling v Associated Dairies Ltd (1981).

Page 4 of 12

Question A2 (recent developments in the law concerning vicarious liability)

This was the second least popular question on the paper, attempted by just under a quarter of all candidates. It required candidates to critically analyse recent developments in the law concerning the imposition of vicarious liability in non-employment relationships (relationships ‘akin’ to employment) and also recent developments in relation to the ‘course of employment’ test. As mentioned in previous examiner’s reports, questions on areas of the syllabus which have been subject to recent legislative or case-law development at Supreme Court level are more likely to surface in examinations at this level of study. It should also be noted that relevant case law was also specifically included as an update to section 5.2 of the Unit 13 Law of Tort Unit Specification for examinations taking place in 2017.

In part (a) candidates were invited to discuss how vicarious liability may attach to relationships ‘akin to employment’, and not just to traditional employment relationships. This development reflects the diversification of working practices in the 21st century: businesses may be fixed with tortious liability arising from a range of working relationships previously outside the remit of the principle e.g. agency staff and those engaged on a ‘zero hours’ basis. The best candidates were aware of these developments and were able to discuss the legal tests used to determine whether a non-employment relationship might give rise to vicarious liability with reference to cases such as Various Claimants v Catholic Child Welfare Society (2013) and Cox v Ministry of Justice (2016). They also commented briefly on developments concerning the possibility of ‘dual’ vicarious liability where human resources are shared between enterprises (e.g. Viasystems v Thermal Transfer (2005) and Various Claimants).

Whilst most candidates were able to define and explain vicarious liability in relation to its various policy justifications, very few were able to discuss the recent case developments mentioned above, let alone the precise legal tests now used to determine whether vicarious liability should be imposed in non-employment relationships. The weakest candidates failed to interpret the question correctly and simply summarised the various tests used to determine the existence of a traditional employment relationship.

Part (b) required candidates to critically analyse developments in relation to the ‘course of employment’ test (which will now apply equally to qualifying ‘non employment’ relationships). The best candidates focused their discussion on the ‘close connection’ test from Lister v Hesley Hall (2001), which is probably now of universal application and not just limited to cases involving the deliberate misconduct of employees. They were able to discuss the application of the close connection test in subsequent cases, culminating with the recent ‘guidance’ provided by Lord Toulson in Mohamud v WM Morrison Supermarkets plc (2016).

Weaker candidates tended to discuss older case law decided by reference to the Salmond test. Very few candidates were able to provide any critical analysis of the law in this area, particularly in relation to recent developments.

Question A3 (negligently inflicted psychiatric harm)

The question required candidates to critically analyse the rules relating to liability for psychiatric harm in the tort of negligence. It was the most popular question on the paper being attempted by almost all candidates.

There were some very good responses which not only accurately summarised the existing law as to when a duty of care will be owed to primary and secondary victims, but which also criticised the law and suggested possible reforms.

A large number of candidates failed to read the question instructions carefully and did not (or were unable to) offer any critical analysis of the rules. Some ignored the reference to ‘psychiatric harm in the tort of negligence’ and discussed the tort of intentionally/recklessly causing indirect physical or psychiatric from Wilkinson v Downton. A very large number of candidates wasted time considering the historical development of the rules rather than Page 5 of 12 focusing their efforts on describing the existing law and the problems associated with it. The similarity of many of these responses suggested that candidates may have been following a ‘suggested answer’ to a slightly different question online.

The main concern, as with previous examination questions on this topic, were frequent errors made by a very large number of candidates in discussing the basic legal rules. Such widespread inaccuracy suggests that candidates may be working from incorrect materials/notes. These errors were so significant that many of the candidates sitting this exam would have been unable to accurately analyse a problem-style scenario on this topic. A correct statement of the law was also needed for candidates to articulate some of the key criticisms of the rules. Common errors encountered were as follows:

 A large number of candidates incorrectly quoted definitions of primary and secondary victims. It should be remembered that this distinction was first articulated by the House of Lords in the case of Alcock v Chief Constable of the South Yorkshire Police (1991), and was later affirmed in Page v Smith (1995) and White v Chief Constable of South Yorkshire Police (1999). Thus earlier cases need to be considered carefully for relevance in discussing the current rules. Primary victims are directly involved in the incident and are either exposed to personal danger, or have a reasonable belief of personal endangerment. They are in the area of physical risk when an incident occurs. Secondary victims are those who are neither in personal danger, nor reasonably believe themselves to be, but who suffer psychiatric harm as a result of perceiving the death, injury or endangerment of a primary victim. Most candidates incorrectly explained that primary victims fear for their own safety whilst secondary victims fear for the safety of others. These explanations were inaccurate in a number of respects. ‘Fear’ is not a necessary requirement for liability in either case. A claimant who is physically endangered by the defendant’s negligence will be a primary victim even if the psychiatric harm was caused through the perception of what happened to others, and not through fear for the claimant’s own personal safety e.g. Young v Charles Church (Southern) Limited (1997). Similarly, those who fear for their own safety but who are found to be outside the immediate ‘zone of danger’ are likely to be secondary victims e.g. McFarlane v EE Caledonia (1993). In secondary victim cases, the requirement is merely that the claimant suffered psychiatric harm caused by a ‘sudden shock’ induced by a direct perception of an accident (or its immediate aftermath) in which those with whom the claimant had close ties of love and affection are involved. The secondary victim’s experience may or may not involve a fear for the safety of others.   There was a widespread misperception that claims by professional rescuers are barred on policy grounds because dealing with horrific incidents is ‘part of the job’. This argument was specifically rejected by a majority of the House of Lords in White v Chief Constable of South Yorkshire Police. Rescuers, whether professional or ordinary bystanders are subject to the general rules concerning primary and secondary victims. Thus the relevant question is whether the rescuer was personally endangered whilst engaged in the rescue attempt (it does not matter whether the rescuer was present when the accident first took place). For example, there can be little doubt that fire fighters and other members of the emergency services who put themselves in harm’s way during the recent Grenfell Tower tragedy would, subject to the presence of negligence, be regarded as primary victims if they suffered psychiatric harm as a result of their experiences. Many candidates cited Chadwick v British Transport Commission (1967) as authority for the proposition that ‘lay rescuers’ might be owed a duty of care on policy grounds. Such a distinction between lay and professional rescuers did not form any part of the ratio decidendi in Chadwick’s case, which was decided before the House of Lords introduced the primary/secondary victim distinction during the 1990s. Chadwick’s case was confirmed as having been correctly decided by a majority of the House of Lords in White, but apparently on the basis that, ex post facto, Chadwick had placed himself in physical danger by crawling amongst wrecked train carriages that might have collapsed on him as he assisted those injured in the Lewisham rail disaster (e.g. see Lord Hoffman).   Few candidates accurately described the rebuttable presumption that a ‘close tie of Page 6 of 12 love and affection’ exists in spousal and parent/child relationships, or the absence of such a presumption in other relationships, such as siblings. Candidates often asserted, incorrectly, that the necessary close ties of love and affection may exist between work collegaues. This proposition is not borne out by the case law (e.g. see McFarlane v EE Caledonia Ltd (1994) and Robertson v Forth Road Bridge Joint Board (1995)). In McLoughlin v O’Brian (1983) Lord Wilberforce observed that this criterion must be assessed not only in relation to closeness of relationship, but also the closeness of care provided within it. There may, however, be rare cases where work colleagues can claim as ‘unwitting agents’ i.e. as a special category of primary victim '... where the negligent act of the defendant put the [claimant] in the position of being, or thinking that he was about to be or had been, the involuntary cause of another's injury…’   A number of candidates asserted that the identification of a close relative’s body in a mortuary after an accident would be regarded as forming part of the ‘immediate aftermath’ of an incident. This was an over-simplistic and, in many cases, an inaccurate analysis of existing case law. Whether such a visit would form part of the immediate aftermath is likely to depend upon a number of factors such as the lapse of time between the accident and the visit (approximately two hours was within the immediate aftermath in Galli-Atkinson v Seghal (2003) and McLoughlin, but an eight to nine hour delay was outside the immediate aftermath in Alcock), the state of the victim’s body (e.g. whether it has been ‘cleaned up’) and possibly the purpose of the visit. In Alcock, Lord Jauncey suggested that a mortuary visit for the purposes of identifying a body would fall outside the immediate aftermath. In Galli-Atkinson, a mortuary visit to confirm mortality, where the claimant had refused to accept the fact of her daughter’s death was found to be within the immediate aftermath.

Question A4 (defamation)

This question was the least popular on the paper, though it attracted the highest average score. Candidates were asked to critically assess whether the rules of defamation successfully balance the competing interests of media organisations and persons they report on.

The strongest candidates briefly described the interests protected by this tort (i.e. the claimant’s reputation, dignity and livelihood) but noted that this has to be balanced by the right, in a free society, to freedom of the press. They went on to describe the elements of defamation and made the point that the absence of a requirement to prove the published statement was false appears (at first sight) to favour reputational interests. The best candidates went on to show how the balance is restored by the availability of numerous defences and the various legal and procedural reforms promoted by Defamation Act 2013 (DA 2013).

Weaker candidates sometimes incorrectly asserted that falsity is an element of a claim in defamation and that defamation is a statutory, rather than a tort. There was often little attempt to evaluate the question by considering how the rules balance the competing interests of the parties. For example, the need to establish serious reputational harm under s.1 DA 2013 will make it more difficult for claims to be brought in the future and should have a liberalising effect on freedom of speech of the press. There was a tendency for some candidates to copy out sections of their statute books (e.g. provisions of DA 1996 and 2013) without any attempt to explain the relevance of the information to the essay question.

Question B1 (trespass)

Only a quarter of all candidates attempted this question. It attracted the lowest average score of all the problem questions on the paper. This is surprising as the elements of trespass to land and trespass to the person are perhaps amongst the easiest rules on the syllabus to state and apply.

Many candidates were unable to provide full and accurate definitions for each of the relevant

Page 7 of 12 torts. Precisely learned definitions will help candidates recall the elements of each of the trespass-related torts.

The strongest candidates were able to analyse the facts of each scenario, to identify the elements of the various torts potentially committed as well as the elements of any relevant defences, and to relate these to each claimant’s circumstances according to the question instructions. They spent most of their time discussing those elements that, according to the question facts, might be more difficult for the parties to establish, whilst spending less time on those elements that would not have given rise to difficulty. Weaker candidates were generally able to identify the torts potentially committed and the relevant defences, but not the legal rules required to establish them. There was therefore a tendency to omit key issues that the question facts were designed to get students to discuss.

Part (a) required students to discuss any claims BHT may have in trespass. Most candidates identified BHT’s claim against the activists for trespass to land, though few spotted the minor issue concerning a possible trespass on the highway. A number of candidates considered whether the activists might have had an implied licence to enter BHT’s land to ‘state their business’ (e.g. Robson v Hallett (1967)), failing to appreciate that such a licence would only extend to entry for an innocent purpose.

Part (b) was generally well answered. Most students identified a possible claim by the activists for false imprisonment against the police service, though comparatively few appreciated that the most relevant defence in relation to the technique of ‘kettling’ is likely to be necessity (e.g. Austin v MPC (2009)). Most considered Bill’s possible claim against Davina in the tort of battery and Davina’s likely claim that she was acting in the defence of her person (self-defence), though it was unclear whether, as a trained police officer, she used proportionate force against Bill. Most candidates also spotted Colin’s potential claim against Amy for false imprisonment and the relevance of Colin’s lack of knowledge concerning his confinement.

In part (c), most candidates recognised that Amy would have a claim for trespass to her subsoil against SGE. Very few candidates were able to cite Bocardo v Star Energy (2010) as authority for subsoil trespass and very few students were able to explain, with precision, the extent of a landowner’s rights to the strata beneath their land or the materials that might be found there. Most candidates recognised that Colin would also have been liable to Amy in trespass to land. Not all candidates appreciated that the act of entry need only be deliberate and intentional, and it would not have mattered that Colin may have been unaware he was crossing the boundary from BHT’s land.

Question B2 (negligence including liability of the emergency services and pure economic loss)

Around 60% of candidates attempted this question. Part (a) was partly based around the facts of the recent case of Beaumont v Ferrer (2016); it was intended that students should be able to analyse the circumstances using general principles of negligence liability. There was also a separate question as to whether the ambulance service could be liable in negligence for a delayed response. Part (b) required discussion as to whether any duty of care owed by a contractor for cutting through a water mains extended to the protection of local businesses from suffering pure economic loss.

In part (a) the best candidates quickly noted that Gita would owe her passenger an established duty of care as the driver of a vehicle. They recognised that Gita pulling away, simply to retain her fare, at a time when she knew Farah was not wearing a seatbelt and would be likely to attempt to exit the vehicle, would amount to a breach of the high standard of care expected of motorists. Relatively little time was spent discussing causation in fact or remoteness of damage given that neither of these elements would have been difficult for Farah to establish on the facts. The strongest candidates considered whether the delayed arrival of the ambulance might amount to a novus actus interveniens, preventing Gita from being liable for any aggravated injury suffered by Farah as a result, but correctly concluded that in the absence of serious negligence, a break in the chain of causation was unlikely. Relevant defences, together with their constituent elements were then considered

Page 8 of 12 including contributory negligence and ex turpi causa. As Farah’s injuries were (arguably) primarily caused by her own crime rather than Gita’s tort (Gray v Thames Trains (2009)) Gita may have been relieved of all liability. In Beaumont, the Court of Appeal noted that there is a stronger case for the application of the illegality defence in cases like this, where the defendant is not involved in a joint criminal enterprise with the claimant.

The issue as to whether the ambulance service might be liable in negligence was also considered in relation to established case law by the best candidates, though relatively few stated the precise ratio from Kent v Griffiths (2000). In this case it was held that a duty to a caller would be owed once the service had accepted the call, having been given the patient’s details and the nature of the emergency, knowing that the patient was relying on the service to respond within a reasonable period of time. A duty would be unlikely to arise where a failure to respond arose due to a lack of resources e.g. where the service had to choose between conflicting priorities. As such it was unlikely that the service owed Farah a duty of care.

Weaker students engaged in a poorly planned response, often slavishly repeating check- listed elements of negligence. Most candidates wasted a great deal of time considering whether Gita owed Farah a duty of care according to the ‘neighbour’ test from Donoghue v Stevenson, and/or by considering the application of the 3-stage test from Caparo v Dickman. Many students pointlessly considered the historical development of the test to determine a duty of care in novel circumstances (e.g. Donoghue, Anns, Caparo etc), failing to appreciate that Farah’s accident fell within one of the most well established and recognised ‘duty’ situations. When it came to considering the liability of the ambulance service, there was often extensive discussion of cases concerning other emergency services such as the police, fire brigade and coastguard services even though candidates often culminated their analysis by mentioning Kent v Griffiths. Some candidates also reverted to the Donoghue/Caparo tests as a means to determine the existence of a duty. As mentioned in previous examiner’s reports, problem questions will rarely, if ever, require students to consider the application of the 3-part Caparo test except possibly in relation to questions on negligent misstatement.

In discussing defences, weaker candidates were generally unable to identify the elements/legal tests necessary to establish ex turpi causa or contributory negligence. There was frequent reference to the defence of volenti non fit injuria even though the application of this defence has been ruled out in negligent driving cases by s.149(1) Road Traffic Act 1988. A number of students confidently predicted that Farah’s entitlement to damages against Gita would be reduced by 25% because she did not wear a seatbelt (e.g. Froom v Butcher (1975)) without appreciating that Farah’s failure to take reasonable care for her own safety involved jumping from a moving vehicle.

In part (b) the best candidates considered whether Henry owed a duty of care to protect the premises of the local retailers, and whether this duty extended to the protection of consequential and pure economic losses. The scenario was clearly based around the facts of Spartan Steel v Martin (1972). Credit was also given to students who considered the nature of the working relationship between Henry and the construction company and whether this would attract vicarious liability.

A significant minority of students failed to identify that the main issue for discussion in this part of the question was the recoverability of pure economic loss in the tort of negligence. A significant number of candidates also considered Henry’s liability under the tort in Rylands v Fletcher, ignoring the question instructions to consider liability in the tort of negligence.

Question B3 (nuisance liability)

Just over 1/3 of candidates answered this question. Most attained a mark in the pass range.

The best candidates considered whether the local residents might have a claim against Jason in the tort of private nuisance in relation to the noise issues and traffic problems caused by the running of his outdoor cinema. The question was designed to replicate many of the issues confronting the Supreme Court in Coventry v Lawrence (No.1) (2014) so far as

Page 9 of 12 the noise issues were concerned. The strongest students considered the elements of private nuisance insofar as they are likely to apply in cases of sensory discomfort/loss of amenity. They then considered the possibility of any defences available to Jason, as well as various claims that would not/not be likely to provide him with a defence (e.g. the existence of planning permission etc). Some candidates also briefly considered the possibility that the traffic problems on the main road may give rise to a private nuisance if there was blocking of access to private parking facilities available to local residents (e.g. Hubbard v Pitt (1976)).

Most students considered whether Karen’s light sleeping patterns might rule out a private nuisance action because she was ‘abnormally sensitive’ (e.g. Heath v Mayor of Brighton (1908)). Few candidates appreciated that ‘abnormal sensitivity’ has probably now been supplanted by the remoteness of damage rule: Cambridge Water v Eastern Counties Leather plc (1994); Morris v NRI (2004). Thus the question was whether sleep disturbance to local residents caused by the night-time operation of an outdoor cinema was a foreseeable type of harm.

Stronger students also dealt with Jason’s possible claim against Lemar in private nuisance. Most candidates spotted that Lemar’s malicious interference with Jason’s sound system would make a successful claim far more likely (e.g. Christie v Davey (1893)), though relatively few appreciated that there is still some outstanding uncertainty as to whether electromagnetic interference may amount to a private nuisance (e.g. Bridlington Relay v Yorkshire Electricity Board (1965), Hunter v Canary Wharf (1997) and Morris.

Relatively few students considered the possibility of a successful public nuisance claim arising from the disruption to the use of the public highway near to Jason’s cinema. The number of persons using the highway would, no doubt, represent a sufficient section of the local community so as to amount to a ‘class of Her Majesty’s subjects’. The local residents are likely to have been more severely affected by frequent congestion on the main road compared to others using the highway and may therefore have suffered ‘special damage’.

A number of candidates wasted time discussing rules that were not necessary for liability and that were not relevant to the facts of the scenario e.g. the increased likelihood of a finding of private nuisance in instances of physical damage to land (St Helen’s Smelting Co v Tipping (1865)), and the rule in Rylands v Fletcher which was not engaged in these circumstances.

SECTION B

Question B4 (negligently inflicted psychiatric harm)

This question was the most popular, and highest average scoring problem question on the paper.

The best candidates split up their scripts into separate sections, using separate headings to consider the claims that might be brought against Nancy by (a) Peter (b) Quinn (c) Richard and (d) Sarah. The best candidates integrated their discussion of the law with its application to the facts of each claim, rather than providing a long discussion of the law at the start of the question, followed by an attempt to apply the law to each claimant.

Most candidates initially identified Nancy as the occupier of the various ‘premises’ where accidents had taken place e.g. the decking and swimming pool (fixed structures), and the reclining chair (a moveable structure) according to the ‘control’ test in Wheat v Lacon (1966).

Most candidates correctly identified that Nancy’s liability in relation to Peter arose under Occupiers’ Liability Act 1957 (OLA 1957) given that Peter was a visitor with express permission to enter the decking area as an invited party guest. It was unclear whether the higher standard of care owed by occupiers to children under s.2(3)(a) would have been applicable in this case to older teenagers likely to be present at a party at which alcohol was being consumed. Whilst candidates were credited for discussion of s.2(3)(a), it seemed highly unlikely that the principle from Phipps v Rochester Corp (1955) concerning parental Page 10 of 12 responsibility for very young children would have been applicable to any of the claimants in the scenario, as suggested by some. Candidates often confused cases such as Mullin v Richards (1998) in describing the standard of care owed by Nancy to child visitors, not realising that this case relates to the standard of care owed by child defendants in the tort of negligence.

Few candidates appeared to appreciate that occupiers’ liability is a statutory form of negligence and that the common law factors relevant to assessing the standard of care expected of the occupier, and whether there has been a breach of duty, will apply (Tomlinson v Congleton BC (2003)). Thus it was relevant to consider factors such as the likelihood and seriousness of injury, and the cost and ease of providing preventative measures. Many candidates insisted that the common duty of care could only be discharged by the provision of an adequate warning (s.2(4)(a) OLA 1957) without considering that a discharge of duty in this case would probably have required treatment of the decking area to prevent it from becoming slippery. A number of candidates also went beyond the facts described in the problem question by suggesting that the treatment of the decking may have been a task entrusted to an independent contractor, and they inappropriately described the criteria for discharge of duty under s.2(4)(b) OLA 1957.

In relation to Quinn’s circumstances, most candidates spotted the ambiguity as to his status as either a visitor or non-visitor whilst using the reclining chair, and most considered Nancy’s potential liability under both 1957 and 1984 Acts. Very few candidates considered whether Nancy's daughter had Nancy’s apparent authority to permit Quinn’s entry (Ferguson v Welsh (1987)) i.e. whether a person in Quinn's position would expect Nancy's daughter to have the authority to invite him into the house/garden under normal circumstances. If so, there was a chance Quinn might be regarded as a visitor.

As with previous examinations, candidates often quoted the 3-part test that must be met for a duty to arise in relation to a non-visitor under s.1(3) OLA 1984, but many failed to apply each part of the test to Nancy’s circumstances.

In Richard’s case, there was widespread confusion as to the legal significance of Nancy’s prohibition against swimming in the pool. This appeared to be an attempt to limit the scope of Richard’s permission to be on Nancy’s premises, so that his entry to the pool would be as a trespasser (a part of the premises he was not permitted to go to). On its true construction, this prohibition did not appear to be an attempt by Nancy to discharge her duty to visitors by providing an adequate warning (s.2(4)(a)), nor was it an attempt to exclude or limit liability (e.g. ‘the occupier accepts no responsibility for the safety of those using the pool’), thus there was no need for candidates to discuss either warnings or exemptions of liability.

Many candidates spotted the similarity between Richard’s circumstances and the facts of cases such as Tomlinson v Congleton BC, but were unable to explain the legal significance i.e. that Richard had probably been injured by a risky activity voluntarily undertaken by a person of full capacity, rather than a danger due to the state of the premises. Thus he may not have had a claim under the Occupiers’ Liability legislation at all. Even if a duty were somehow owed to Richard under OLA 1984 (and it is unlikely that Nancy could reasonably have been expected to provide protection against obvious risks – s.1(3)(c) OLA 1984), Nancy would probably been able to rely on the defences of volenti non fit injuria and contributory negligence. However, these defences were rarely considered by candidates who too willingly assumed that Nancy would be in breach of a duty of care owed to Richard either under the 1957 or 1984 Act.

A very large number of candidates described non-visitors (who fall under the 1984 Act) incorrectly as ‘unlawful visitors’ or ‘non-lawful visitors’. Centres should take care to ensure the technically accurate terminology is adopted. In addition, candidates should note that it is technically incorrect to refer to a child ‘allured’ onto premises by some attraction as being ‘upgraded’ from a non-visitor to a visitor. The post 1984 case law has tended to recognise the allurement principle as being applicable to child visitors who go beyond their permitted purpose due to some attraction on the occupier’s premises. Thus if the allurement principle applies at all it operates to preserve the child’s status as a visitor and not to ‘upgrade’ it. Candidates who suggested that Richard remained a visitor in the pool because it

Page 11 of 12 represented an ‘allurement’ were credited for the suggestion, but this still ignored the fact that Richard was probably injured by his own voluntarily undertaken risky activity rather than a danger due to the state of the premises, and was thus outside the scope of the occupiers’ liability legislation.

As noted in previous examination reports, a large number of candidates were unable to accurately pinpoint statutory provisions. It was common, for example, to find s.1(3) OLA 1984 being referred to as s.3. Accurate statutory pinpointing is an important basic skill for lawyers and Centres should take care to ensure their candidates are given appropriate skills tuition in order to eliminate this sort of error.

Page 12 of 12