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 Tort 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 negligence 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 duty of care 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 torts 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.