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Introduction
Answers to essay questions can be improved by including deeper analysis of
leading cases and attention to scholarly articles.
Common mistakes in examinations are to misinterpret the question and/or not
follow the rubric (for example, despite being told in Question 5 to assume vicarious
liability on the part of the health authority, many candidates discussed vicarious
liability at length). These errors are hard to eliminate because they are often the
result of candidates’ reactions to time pressure. However, some greater effort could
be given to tutoring candidates on the way they approach their answers.
For scripts that scored low marks for reasons other than lack of basic knowledge of
legal principle, weaknesses were the result of devoting too much time either to a
restatement of the facts in the question and /or a detailed recital of the facts of a
case. Although these answers may have demonstrated knowledge of the issues
and identified some relevant authority, they lacked focus or a sufficiently detailed
analysis.
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whether the intervening medical examination broke the chain of causation between
Begin Again’s negligence and Dexter’s eventual death – having taken account of
the fact that negligent treatment is unlikely to amount to a nova causa.
Poor answers to this question…
tended to place too much (or all) emphasis on breach. Although the breach issue
was generally dealt with well – the majority concluding that Sally will be unlikely to
show that she has reached the standard imposed under Bolam, this aspect of
negligence was relied upon too much in weaker answers. Most answers picked up
on the fact that the case of Barnett can be used to support the argument that what
appears to be a cursory examination would not accord with the actions of a
reasonable, competent and careful medical practitioner.
Question 6
Robert and Maria decided to hire a caravan on a holiday for a two-week
period, accompanied by their daughter (Felicity) and son (Jesse). The caravan
site (owned and maintained by Holiday Caravans UK Ltd) was advertised as
an ideal location for children. The first three days of the holiday were without
incident, but tragedy struck on the fourth day. Felicity and Jesse went to a
more secluded part of the caravan site and climbed over a low fence on which
was placed a notice saying: “Keep out. Danger.” Once on the other side,
Jesse saw some berry trees and began to eat some of the berries. Soon after,
Jesse began to feel very unwell and Felicity took him back to the caravan.
Robert and Maria had returned from their lunch and Maria decided to give
Jesse a bath and put him to bed to rest and recover from what she believed
was the effects of eating too many berries. Maria knew that the hot taps on
the bath were defective but did not realise how serious the fault was. The hot
water spurted out and Maria was badly scalded. Jesse died during his sleep
and it was discovered that the fruit which he consumed was poisonous.
Advise all parties as to their rights and liabilities under the Occupiers’
Liability Acts 1957 and 1984.
General remarks
The question revolves around the OLA 1957 and 1984, with emphasis on the duty
owed to child visitors/trespassers.
Law cases, reports and other references the examiners would expect you to
use
Occupiers’ Liability Act 1957, ss.1 and 2; Occupiers’ Liability Act 1984, s.1;
Tomlinson v Congleton Borough Council (2003); Darby v National Trust (2001);
Phipps v Rochester Corporation (1955); Simkiss v Rhondda BC (1983); Jolley v
Sutton LBC (2000); Wheat v Lacon & Co Ltd (1966).
Common errors
Failure to give attention to Maria’s (mother’s) actions; failure to clearly distinguish
when/if the 1984 Act is applicable to the child’s situation.
A good answer to this question would…
provide a convincing account of the status of Jessie in respect of the berries –
taking account of the concept of allurement which is likely to suggest that he falls
under the 1957 Act and not the 1984 Act. Good answers would acknowledge the
lack of clarity in the question and argue Jessie’s position should be considered
under both Acts, noting – in the context of the 1957 Act – that the warning may not
be sufficient, given the ease of access to the field of poisonous berries. The case of
Simkiss could be used to argue that the parents should not have left the children
unattended. Good answers would also pick up on the point that it is not clear that
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Maria was careful in her assessment of Jessie’s situation. Finally, good answers
would discuss whether the caravan constitutes premises for the purposes of the
OLAs, and conclude that it did.
Poor answers to this question…
tended to rely too heavily on the text of the OLAs and demonstrated little knowledge
of case law. These answers also tended not to make sufficiently clear when the
1957 or 1984 Act would be engaged.
Question 7
Hasan and Devla both inherited £90,000 from their recently deceased parents.
Hasan decided to invest his money in a country house retreat and Devla
decided to invest in shares. Devla’s best friend (Edward) was a financial
adviser and during a drinks party advised Devla to invest in a company (JOY
UK) which organised children’s parties. Devla was very interested in the
prospect but wanted to check the company’s audited accounts before making
a final investment decision. The audited accounts showed a healthy profit and
so Devla invested £40,000. Unfortunately, the audited accounts had been
prepared by an accountant (Ponsonby) who was dismissed for professional
negligence. Hasan’s attractive country cottage was found to have been built
on insecure foundations and is now subject to a defect which poses an
imminent threat to his health and safety.
Devla lost the full amount of her investment and Hasan has been advised that
he must spend £20,000 to cure the defects in the property.
Advise all parties as to their rights and liabilities in respect of Devla and
Hasan’s pure economic losses.
General remarks
The question requires knowledge and application of the principles governing pure
economic losses resulting from negligent acts and negligent misstatements.
Law cases, reports and other references the examiners would expect you to
use
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973); Anns v Merton
LBC (1978); Murphy v Brentwood DC (1991); Hedley Byrne Co Ltd v Heller
Partners (1963); Caparo Industries Plc v Dickman (1990); Chaudhry v Prabhakar
(1989).
Common errors
Ignoring or dealing inadequately with the Anns/Murphy line of authority on liability
for pure economic losses resulting from defective premises.
A good answer to this question would…
recognise that Hasan’s situation is almost identical to the case of Anns and thus
that the solution falls within Murphy v Brentwood, concluding that Hasan would not
be able to recover for his financial losses.
Good answers would also identify that Devla’s situation raises the more substantial
questions concerning duty of care in cases of pure economic loss. Good answers
would demonstrate a strong understanding of the Hedley/Caparo test and conclude
that Edward clearly had knowledge of the purposes for which his statement would
be used but the statement was made in a social setting in circumstances in relation
to which Chaudhry is unlikely to apply. Moreover, Devla appears not to have relied
upon Edward’s advice and the issue concerning the audited accounts falls solidly
within the Caparo situation – the accounts not being prepared for the purposes of
making investment decisions.
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Advise all parties on their rights and obligations in respect of the intentional
torts and negligence and any defences that might be raised to defeat an
action in negligence.
General remarks
The question expressly requires analysis of relevant defences but answers should
also display a good appreciation of relevant causes of action and the general rules
on negligence.
Law cases, reports and other references the examiners would expect you to
use
Law Reform Contributory Negligence Act 1945; Pitts v Hunt (1991); Sayers v
Harlow (1958); Ashton v Turner (1981); Bird v Jones (1954); Austin v Commissioner
of Police (2009); Joyce v O’Brien (2013); Hicks v Young (2015).
Common errors
Failing to focus on defences/focusing instead on general issues of negligence – too
much on duty/breach – matters not much in dispute.
Poor identification of causes of actions – as if everything must be forced into the
framework of negligence.
A good answer to this question would…
accurately identify relevant causes of action in respect of John, Fred and Pete’s
injuries and demonstrate basic knowledge of the requirements of trespass to person
and negligence. Strong answers would identify all or most of the following:
John is unlikely to recover for his battery because of the ex turpi defence –
the case is not dissimilar to Ashton v Turner.
Fred would be able to make out liability for false imprisonment but on the
basis of Sayers v Harlow may be found to have contributed to his injuries –
as a result of his escape.
A strong answer would consider the applicability of Pitts v Hunt – given both
Nigel and Pete were involved in the gang and relevant associated activities.
As far as Fred is concerned, you should briefly address duty of care and
breach of duty of the train driver. It is unlikely that there would be a
sufficiently strong causal connection between Fred’s wrongdoing and his
injuries to sustain the ex turpi defence and no evidence of contributory
negligence on Fred’s part either.
Poor answers to this question…
Failed to read the question properly and so failed to focus on defences. Where
defences were used, the tendency was to over-use contributory negligence and to
pay insufficient attention to ex turpi.
Question 10
Rentavehicle is a large taxi hire firm with a broad-based clientele, including
business customers. The Managing Director (Gillian) has consulted you over
two recent incidents. First, one of the taxi drivers (Nicholas) allowed a driver
from another taxi firm to use his (Nicholas’s) taxi between 6pm and 12pm on
a Friday night. During that period, a young woman (Pamela) who was picked
up in Nicholas’s taxi suffered a serious sexual assault. The perpetrator of the
assault has been identified as the person to whom Nicholas loaned the taxi.
His name was Mitchell and he has since been arrested. The second incident
concerned a longstanding business client (Troy) was driven to the airport by
one of the drivers (Helen). During the drive, Troy asked Helen whether she
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could stop the taxi outside a restaurant and purchase a takeaway hot meal for
him. Troy told Helen that he was allergic to nuts and that, on no account
could the meal contain nuts. Helen was anxious to help Troy because he
brought a lot of business to the taxi firm but she was also concerned that she
was illegally parked. Helen completely forgot to inform the waiter of Troy’s
nut allergy. The meal did contain nuts and Troy suffered a severe allergic
reaction and died.
Advise Rentavehicle as regards its liability in respect of Troy’s death and
Pamela’s assault.
General remarks
This question is about vicarious liability, with emphasis on course of employment
but strong answers would not ignore the questions around employee status posed
by Nicholas’ position.
Law cases, reports and other references the examiners would expect you to
use
Lister v Hesley Hall Ltd (2002); Ready Mixed Concrete v Minister of Pensions
(1968); Rose v Plenty (1976); Twine v Bean’s Express (1945); Various Claimants v
Catholic Child Welfare Society (2012).
Common errors
Failing to address employee status in relation to taxi drivers; failing to assess
Nicholas’ actions in loaning the taxi in the context of course of employment.
A good answer to this question would…
analyse Pamela’s situation in light of the Lister test. A straight application of the
Lister test would seem to yield a negative answer – it is hard to see how there could
be said to be a close connection between the assault and the work of a taxi driver –
the loan of the car merely gave Mitchell the opportunity to commit the assault and,
according to Lister, mere opportunity is insufficient. Mitchell is not an employee
(even the expanded notion of employee in the Catholic Child case would not affect
his position) and good answers would assess instead Nicholas’ status and the
status of his act of loaning the vehicle. Good answers would also address the issue
of employment status – given that Nicholas was loaned the car.
Strong answers would also argue that Helen was probably acting outside the
course of her employment -– the role of taxi driver not being connected with
ordering meals – Rose v Plenty is distinguishable because the boy trespasser was
still delivering milk.
Poor answers to this question…
Although the tort of negligence is the key aspect covered in the course, vicarious
liability crosses the spectrum of torts and in such questions candidates should be
prepared to see other torts, such as trespass to the person. Too many answers
were compromised because candidates sought to strain the facts of the problem
scenario within the frame of the tort of negligence – this worked for Troy but not for
Pamela.
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