Tort Report 2022 B

Examiners’ reports 2022
LA2001 Tort law – Zone B
Introduction
This exam presented different opportunities and challenges, due to the fact that it
was completed online. Candidates had access to materials such as the module
guide, textbooks and other notes; therefore, a higher standard of detail was
expected and this was often demonstrated. The emphasis was less upon memory
but rather on applying law derived from cases and statutes to address the issues in
problem questions or provide discussion and analysis for essay-type questions.
Students had five hours, of which it was intended that four hours would be spent
actually writing their answers. A pitfall was the possibility of plagiarism and a small
minority of papers had to be referred because they contained a large proportion of
material that was not original but was derived from other sources and not properly
referenced.
There were many good answers, however, in a number of cases, candidates could
have demonstrated their knowledge and understanding more effectively had they
had a better grasp of essential exam technique. Some common errors will be
explained in this introduction and the main body of the report contains extracts to
illustrate both strengths and weaknesses in approach. Please note that any spelling
and grammatical mistakes have not been corrected in the extracts used below. It
must be noted that spelling, grammar and English usage were particularly
disappointing in too many scripts this year.
Some answers revealed that the candidate had not taken sufficient time to read the
question slowly and carefully, in order to pick up all the essential detail in problem
questions. The process of noting all the legal issues that arise and writing an outline
or plan, before starting to write the answer will both provide essential organisation
for the answer but will help ensure that nothing has been missed. As the answer is
written, the plan provides a point of reference to ensure that the answer is clear,
relevant and logical. It is important to read and adhere to the rubric, or instructions
at the end of the question, e.g. ‘Advise A and B’, or ‘Discuss and analyse’. Good
time management is essential. It is almost impossible to obtain a good mark by
answering only three out of four questions well, compared to answering all four
questions to a slightly lower standard.
Problem questions assess the ability to identify and apply the relevant legal
principles to a hypothetical factual scenario. A good mark is obtained in a problem
question by demonstrating knowledge of the law: first identifying the legal issues
behind the scenario and then applying the relevant case law or statutes to provide
the best solution. It is not an efficient use of time to give lengthy introductions and/or
conclusions; both should be concise. You should not write out the facts of the
scenario again; this is a waste of time and effort. Further, the facts of cases cited
are almost never required. It is important not to jump to conclusions but to think
carefully about different possibilities and then give correct legal authority for your
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conclusions. Relevant defences should always be included. Students often
presented all the relevant law that might be raised by the scenario and then, without
separating the issues clearly, failed to apply these legal principles to the scenario.
Alternatively, some candidates made the mistake of addressing the scenario in very
general terms without providing case and statute authorities on which to base
conclusions.
As in previous years, candidates showed a preference for answering problem rather
than essay questions but there were some excellent essay answers. A common
mistake in essays is for the candidate to write everything they know about the topic,
without addressing the quotation or question. The key to success on essays is to be
aware from the outset that a particular issue or debate is the focus. Therefore, the
answer must present a clear line of argument that addresses the issue or debate. It
must be well organised and supported by relevant legal authority. Thoughtful
analysis and criticism, supported by reading of articles in legal journals will help to
achieve a high mark. Coherent and well-structured arguments will assist you to
draw conclusions based on the themes presented.
Comments on specific questions

PART A
You must answer these COMPULSORY questions about the article Giliker, P.
‘Can the Supreme Court halt the ongoing expansion of vicarious liability:
Barclays and Morrison in the UK Supreme Court?’ (2021) Tottel's Journal of
Professional Negligence 37(2) 55.
Question 1
a) Why does the Supreme Court in Barclays refer to Armes as ‘the most
difficult case’?
b) What was the impact of Mohamud v Wm Morrison Supermarkets plc
on the application of the ‘connection test’?
c) Giliker asserts that Mohamud ‘represented a false step in the law’.
What, in her view, should have been the response of the Supreme
Court and why?
d) What is Giliker’s opinion of the overall impact of the Supreme Court
decisions in Barclays and Morrison? Do you agree?
General remarks
This compulsory question provided the candidate with the opportunity to
demonstrate their ability to read, comprehend and analyse an academic article, as
well as to summarise their understanding of the most recent developments in the
law of vicarious liability. As with all multi-part questions, it is important that each of
the four sub questions (a)–(d) are answered fully.
Law cases, reports and other references the examiners would expect you to use
Armes v Nottingham CC, Barclays Bank v Various Claimants, Various Claimants v
Catholic Child Welfare Society, Mohamud v W Morrison Supermarkets, W Morrison
Supermarkets v Various Claimants, Dubai Aluminium v Salaam, Lister v Hesley
Hall, Prince Alfred College v ADC, Cox v Ministry of Justice.
Common errors
A common error was to write in a sloppy manner, using poor English and grammar,
to the extent that the answer was difficult or impossible to understand. This
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prejudices the answer before the content is even considered. Other common errors
were to write briefly, with little or no reflection or analysis. Adequate answers, which
merited only a second-class mark, merely replicated the author’s own words.
A good answer to this question would…
demonstrate a sound comprehension of recent developments in the law of vicarious
liability, in terms of the context of previous case law. This would include the role of
Barclays Bank in clarifying the employer–employee relationship and the way that
the ‘close connection test’ has restored the qualification to ‘close’ rather than
‘sufficient’. Giliker believes that the Supreme Court erred in not overruling Mohamud
because clear guidance has not been given of a more principled, less policy-based,
approach and the expansion of vicarious liability may not have been halted. It is
always important to analyse and expand on the author’s thesis. It would be clearly
written, using good English and grammar.
Poor answers to this question…
did not appreciate and engage with the essence of Giliker’s argument. They failed
to accurately incorporate the recent evolution of the law on vicarious liability and the
context of policy and principle. A poor answer would not be in the candidate’s own
words but rather just repeat those of the author.
PART B
Question 2
Linda is giving birth in Avonside Hospital, accompanied by her partner Ian.
They make it clear from the beginning that any blood transfusions are
contrary to their beliefs. After a long labour, a newly qualified midwife, Polly,
delivers a healthy baby boy. When Polly agrees to allow Linda to walk to the
toilet, Linda begins to bleed profusely. The consultant obstetrician on duty,
Mr Shah, is summoned. He informs the couple that a blood transfusion will be
necessary. Ian loses his temper and threatens to throw a bottle at Mr Shah.
Polly grabs Ian by the arm and pushes him into the ensuite toilet and locks
the door. While conscious, Linda continues to protest but Mr Shah persuades
her to accept sedation ‘for pain relief’. While Linda is sedated, Mr Shah
administers a blood transfusion. Polly forgets about Ian, and he remains
locked in the toilet for two hours.
Advise the parties.
General remarks
This question gives the candidate the opportunity to demonstrate their
understanding of the law of trespass to the person and to apply it to a relatively
straightforward scenario. It involves assault, battery, false imprisonment and
negligence. The most problematic aspect of the question is the action of Mr S,
which would clearly be the tort of battery, but some candidates treated it as
negligence.
Barnett v Chelsea and Kensington, Bolam v Friern, Wilsher v Essex, Stephens v
Myers, Wilson v Pringle, Thomas v NUM, Livingstone v MoD, Condon v Basi,
Collins v Wilcock, R v Ireland, Bird v Jones, Robinson v Balmain Ferries, Chatterton
v Gerson, Re F.
Common errors
No common errors.
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identify and define the aspects of the scenario that constitute the torts of
negligence, battery, assault and false imprisonment. The key elements are
directness, intention and damage. It would give relevant case authority to support
the application of the law, while staying relevant to the question. It is important that
the Chatterton v Gerson aspect of L v Mr S be discussed. It would be clearly
written, using good English and grammar.
failed to consider all the actionable aspects of the scenario, or wrongly applied the
law. Many candidates appear not to have read the question slowly and instead
jumped to the conclusion that it was a totally negligence scenario and then
inevitably struggled to apply negligence law. Some made flat assertions about the
law but failed to support this with legal authority.
Question 3
In the town of Riverside, a department store is being converted into a hotel.
The owners of the site are Magnum Hotels and they have contracted with
Wilson & Sons to do the work on the conversion. There are two entrances to
the site, one from the street and one from a side alley. On the street entrance
is a large sign which reads: ‘Building sites can be dangerous places. Please
report to the office to collect a hard hat.’ Nadhim works in the Riverside
Council Surveyor’s Department and has come to inspect the building work.
He enters from the street and goes straight up the stairs to the first floor
where he intends to inspect the window. Nadhim trips on a length of pipe
lying across the top of the stairs and as he falls, he knocks over a light fixture
and sustains a severe head injury. That evening, Alice is walking down the
side alley and notices that the door to the building site is ajar. She enters to
investigate and, in the dark, becomes entangled in live electrical wires. Alice
sustains serious burns and her leather jacket is ruined.
Advise the parties.
General remarks
This question concerns occupiers’ liability in negligence and gives the candidate the
opportunity to apply the common law and statute.
The Occupiers’ Liability Acts 1957 and 1984; Wheat v Lacon, Phipps v Rochester
Corporation, Simkiss v Rhondda BC, Bourne Leisure v Marsden, Tomlinson v
Congleton BC.
Common errors
No common errors.
accurately apply the relevant law, both case and statute to each actionable element
of the scenario. There is relatively little statute in tort law, so here it important that
candidates give due attention to the wording of the statutes and analyse this in
application. Relevant cases should be cited, giving only the necessary amount of
factual detail. While the policy context is relevant, good answers to problem
questions need not be overly discursive. Answers must be clearly written, using
good English and grammar.
lacked sufficient detail in considering the various aspects of the events in the
scenario. An answer given without due consideration will be shallow and key
aspects will be missed, so the answer will be incomplete. Insufficient analysis might
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lead some candidates to miss the point that the Alice was a trespasser when injured
and that the OLA 1984 must be applied in full.
Student extract
This scenario falls under occupiers liability. Duty of Care (DOC) is owned [sic]
to those under contract, invitees and licensees but less to trespasser.
Occupiers Liability Act 1957 (OP 1957) regulated the duty which an occupier
of premises owes to his visitors in respect to [d]anger due to the state of the
premises or to things done or omitted to be done to them. Damage must
have originated on the premises rather than what is done on it. S.1(2) duty
imposed by law in consequence of a person’s occupation or control of
premises. therefore who controls the land – no statutory definition of who the
occupier is. In Wheat v Lacon – the D brewery owned a pub who gave the
manager permission to live with this wife on the 1st floor and take payment
from guest. a guest was killed by falling down the unlit staircase that had
inadequate railing. House of Lords (HOL) held nothing in law to prevent their
being more than one occupier of staircase – neither breach of duty as light
bulb had recently been removed by stranger.
In the case at hand, Magnum Hotels are the owners of the property and
Wilson Brothers was the contractors they would not be liable for injury
sustained by Nadhim because the law is concerned with the premises not the
repairs or what someone else does. Therefore the person in control of the
premises who regulate who comes and goes will be liable however step[s]
were taken to ensure the safety of the guest.
Premises is defined under s.1(3)(a) OLA as a fixed or mover able structure
and include anything affixed to the premises. S.1(2) say 'duty is owned to
“visitors” who have “expressed or implied” permission to enter the premises
or have license or was an invitee' Under common law a fireman would be
included but not someone using a right of way (Nadhim) was a ‘licensee’ his
purpose was to do work as an inspector which gives him expressed or
implied permission to enter the premises. in Calgart a visitor was permitted in
one part of the premises but trespassing in another. It was held that you
invite a person to your ho[m]e to use the stairs nut bot to slide down the
banister. in this case permission was given to inspect the premises. even
though there were warning signs to get a hard hat Nadhim neglected to read
the warning sign therefore highly unlikely Magnum Hotel would be held liable
for his injuries.
Under s.2(2) visitors are owned a standard of care. a duty to take such care
as in all circumstances of the case is it reasonable to see that the visitor will
be reasonably safe using the premises for the purpose which hie [sic] is
invited or permitted by the occupier. in this case the visitor must be
reasonably safe and Nadhim even though is owned a duty under s.2(2)
'negligent omission' in addition to act and damages to property personal
injury or debt. [In] this case there was not negligent omission so Nadhim may
not have a claim for in jurie3s against Magnum Hotels.
Under OLA 1957 children, skilled visitors warning; and independent
contractors are covered. this makes matters somewhat problematic in
contrast to s.2(2) because since there were signs of danger. as long as there
was [sic] adequate warning signs this ‘discharges’ duty of care as long as it
was adequately given and enough warning to be reasonably sage. Adding
the disclaimer at the entrance 'building site is a dangerous place refer to
office for hardhat this could be sufficient notice however in this scenario it is
uncertain whether the warning sign is sufficient to exempt Magnum Hotels
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from responsibility since wording of ‘not responsible fore [sic] loss or injury
whatsoever[’] that would have excluded them from liability.
S.2(4)(a) OLA states where damage is cause to visitor by danger of which he
has been warned by the occupier the warning is not be treated without more
as 'absolving' the occupier from liability unless in all circumstances it was
enough to enable the visitor to be reasonable safe. The iron on the step may
not be seen as enough warning in the statement on the door which would
exclude Magnum from liability but under law it appears as a blanket
statement not a warning specific to 'stairs dangerous' use at ow[n] risk
therefore it is possible that magnum may be held responsible.
Under s.2(4)(6) OLA 1957 provides a defence to some occupiers if work
done by an independent contractor Nadhim may be able to claim against
Wilson Brothers for negligently leaving dangerous workplace. however in
Haseldine v Daw visitor killed when lift failed in D's building. repairs were
done by competent engineer and occupier could not have been expected to
check whether work was performed properly – occupier not liable.
In this case Will Brothers may be a reputable contractor. in Woodward v
Mayor of Hastings in contrast to Haseldine a cleaning person was given a
task of clearing the school steps of ice and show, a pupil slipped and was
injured on the step. this was not a technical task D should have checked.
Whether contractor was competent was held in Gwilliam v West Herts NITS
Trust that is also by be expected that occupier satisfy himself that the
contractors is also ‘adequately insured’ Magnum could have sheltered them
self from liability by insuring [sic] that work done by Wilson Brothers was
covered under their liability insurance. in this case Compensation Act 2006
s.2(1) allow occupier from restricting modifying or excluding themselves from
liability 'in so far as free to do so'. Under Unfair Contract Term Act 1977 state
'if premises used for business purposes occupier cannot exclude from liability
for death or personal injury caused by negligence[’]. Riverside is being
converted to a Hotel therefore operating as a business and in that case any
attempt to exclude liability subject to 'reasonableness test’. the purpose of the
business was for a Hotel therefore Magnum cannot exclude themselves from
liability because they are not included in an 'educational or recreational'
category therefore Nadhim may be able to sue.
Under OLA 1984 HOL established 'duty of common humanity' but this only
applied to trespassers. Law commission proposed to pass the 1984 Act to
give courts more flexibility to apply the law in fact. Under s.1(1)(a) occupier
applies to person other than visitor 'trespassers and those using right of way.
Personal injury and death no duty for property damage. so even if 'occupier
liability' does not apply there still can be liability in negligence. Magnum [c]an
be held negligently responsible for Nadhim's injury. Keown v Coventry
Healthcare NHS Trust 11 year old trespasser fell from fire escape no duty
owned to him accident due to his climbing on the fire escape s.1(3). Nadhim
had knowledge he was entering a construction site. this mitigate[s] liability to
Magnum he cannot hold them liable for damages because he had knowledge
of danger. Under s.1(4) duty may arise if they did not take such care as is
reasonable in all circumstanced [sic] of the case to see that visitors do not
suffer any injury on their premises. Under s.1(5) warning may discharge duty
– there was warning which may exonerate them.
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Alice
s.1(6) defence of volenti – accept risk she entered the building without
permission and there were warning signs posted. she should have known it
was dangerous.
conclusion – Magnum not responsible for Nadhim's injuries.
Comments on extract
All occupiers’ liability problem questions must demonstrate an understanding of and
ability to apply the relevant legislation (Occupiers’ Liability Act 1957, Occupiers’
Liability Act 1984, Unfair Contract Terms Act 1977 and/or Consumer Rights Act
2015); also their relationship to the common law. Claimants must be categorised as
lawful entrants (visitors: s.1(2) OLA 1957) or unlawful (trespassers: OLA 1984). The
defendant occupier/s must be identified. The distinction between occupancy and
activity duties must be understood. As in all problem questions assertions must be
supported accurately by legal authority. The strength of the above answer, which
was marked at the 2:2 level, is that it is detailed and comprehensive. In fact, it is too
detailed in the sense that relating the facts of cases such as Wheat v Lacon is
unnecessary. This answer rightly applies provisions of the legislation but should do
so with more detail and clarity, for instance in relation to s.1(3)(a)–(c) OLA 1984.
There are problems of accuracy: for instance the OLA 1984 did not establish the
duty of common humanity (rather this emerged earlier from BRB v Herrington) and
the Consumer Rights Act 2015 would apply rather than UCTA. A warning under
s.2(4)(a) OLA 1957 does not exclude but rather may discharge the duty of care.
The answer would have benefitted from careful proof-reading.
Question 4
Simon is employed by Greenland Supermarkets as a shelf stacker. His job
requires frequent trips to the stock room, where he accesses the high shelves
with a ladder. He has been concerned about the condition of the ladder for
some weeks and has notified his manager, Bella, about these concerns. Bella
has promised to look into the problem but has not done so yet. One day,
while Simon is on the ladder, his workmate, Tim, comes into the stockroom.
As a joke, Tim grabs the ladder and gives it a shake, laughing. The ladder
collapses and Simon falls to the floor, breaking his ankle.
Over the coming months, the relationships between the employees at
Greenland Supermarkets deteriorate to the extent that Afeesha, another shelf
stacker, dreads coming to work. She begins to take frequent sick leave. When
Bella asks for an explanation, Afeesha replies that everything at work is fine.
Now Afeesha has had a nervous breakdown and been signed off work
indefinitely by the doctor.
Advise Simon and Afeesha.
General remarks
This question covers employers’ liability in the common law for the safety of their
employees and vicarious liability. Due to s.69 of the Enterprise and Regulatory
Reform Act 2013, the statutory aspect is no longer given so much prominence.
Wilson and Clyde Coal v English, McDermid v Nash, Hudson v Ridge, Barnett v
Chelsea, Employers’ Liability (Defective Equipment) Act 1969.
Common errors
No common errors.
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identify the essential employers’ liability nature of this negligence question. It would
be comprehensive, accurate and apply the relevant case and statute law to the
issues of non-delegable common law liability; including the duty to provide correct
and safety equipment, competent staff. It would incorporate the requirement for the
claimant to establish breach and causation as well as duty. Vicarious liability and
defences should be considered.
failed to achieve the above and instead answered very generally on the basics of
general negligence. They omitted considering the essential expectation on the
claimant to establish rather than assume breach or causation.
Question 5
Pavel and Richard have been friends since childhood. One Saturday, they
decide to attend a rugby match at the grounds of their favourite team, the
Bevington Bears. The management of the Bears has long been postponing
essential repair works on the heating system in the stadium stands. During
halftime, while Richard goes to car to find his wallet, a fire erupts in the
stadium. Smoke begins to seep up beneath Pavel’s seat in the stadium and
Richard watches from the car park as spectators, some burned, stumble from
the stands. Pavel sustains serious burns. Seema, a paramedic, sustains lung
damage from smoke inhalation when pulling Pavel from the flames. Julie,
Pavel’s wife, is watching the game on television at home, and sees the fire
and the rescue operation unfold in the area where she knows the men to be
sitting.
Pavel has become depressed during his recuperation from his injuries.
Richard was diagnosed with PTSD five years ago when he returned home
from his job as a war reporter. He is now unable to sleep and is drinking
excessively. Seema is stressed and considering leaving her job. Julie spends
two months helping to care for Pavel in hospital and seems to have
undergone a personality change.
Advise the parties regarding rights and liabilities.
General remarks
This is a detailed problem question covering the issue of psychiatric injury in
negligence as well as the fundamentals of negligence: duty, breach and causation,
as well as defences to negligence. It requires that the candidate be able to unpick
the chain of events to decide where the causes of action would lie, against whom
and for what injury.
Donoghue v Stevenson for basic duty of care. Then regarding psychiatric injury:
McLoughlin v O’Brian, Page v Smith, Hambrook v Stokes, Hinz v Berry, Alcock v
CC S Yorkshire, White v CC S Yorkshire, Brice v Brown, Galli-Atkinson v Seghal,
Sion v Hampstead HA.
Common errors
No common errors.
understand the legal relationship between the parties involved in the scenario and
accurately identify where the tort action might lie. Further, it would demonstrate an
understanding of the way that the various control mechanisms around duty of care
for psychiatric injury operate and apply the correct case law authority in the right
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place. For primary victims Pavel and Seema the key case is Page v Smith; for Julie
and Richard the key case is Alcock v CC S Yorks.
were not well organised so that key aspects of the scenario omitted or, not all
possible claimants dealt with equally. Poor answers would not appropriately apply
the case law which establishes duty of care, or not, for psychiatric injury in
negligence. Also, failure to establish breach by the defendant, or causation of the
claimant’s condition.
Question 6
‘A man is not bound at his peril to fly from a risk from which it is another’s
duty to protect from, merely because the risk is known.’ (Sir Frederick
Pollock.)
Discuss this quote in relation to the evolution and current status of the
defence of voluntary assumption of risk, or volenti non fit injuria.
General remarks
This essay question gives the candidate the opportunity to review and analyse the
negligence defence of voluntary assumption of responsibility, known as ‘consent’.
Because this is a complete defence, it is important to recognise when it applies to a
situation, and its numerous limitations.
Morris v Murray, Smith v C Baker, Baker v Hopkins, Haynes v Harwood, ICI v
Shatwell, Dann v Hamilton Condon v Basi, Reeves v Commissioner of Met Police,
s.149 Road Traffic Act 1988.
Common errors
No common errors.
define the defence of consent and its rather narrow ambit, its relation to other
defences and would give accurate examples of when it does or does not apply. It
would be comprehensive in relating the ‘evolution’ of case law developments in this
area and accurately analyse the policy issues that have been discussed in the
judgments and in attempts to justify or exclude the defence.
did not address the question as set in the quotation and rubric but instead just gave
a descriptive account of some case law.
Question 7
‘There is a tendency, which has been remarked upon by many judges, for
phrases like ‘proximate’, ‘fair, just and reasonable’, and ‘assumption of
responsibility’, to be used as slogans, rather than practical guides to whether
a duty of care should exist on not.’ (Lord Hoffmann.)
Discuss, with reference to negligent misstatement.
General remarks
This essay question invites the candidate to discuss the duty of care for recovery of
(pure) economic loss in policy terms and then specifically in relation to duty of care
for negligent misstatement.
Hedley Byrne v Heller, Esso Petroleum v Mardon, Smith v Bush, Caparo v
Dickman, White v Jones, Spring v Guardian Assurance, Henderson v Merritt,
Commissioners of Customs and Excise v Barclays Bank.
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Common errors
No common errors.
be focused and use a clear line of well-organised argument. A good answer would
define what is meant by pure economic loss and then set out policy issues against
duty of care for this type of injury. Among them are the traditional negligence focus
on personal injury and property damage, the ‘floodgates’ argument and the potential
overlap with contract law. If focusing on negligent misstatement, it would then trace
the way that this ‘prejudice’ is not a ‘hard and fast rule’ but the way the case law has
evolved to permit recovery in this area, including the Hedley Byrne ‘special
relationship’ and voluntary assumption of responsibility.
failed to achieve what is described above. It might fail to account for the law’s
underlying policy issues behind duty of care decisions in this area. A poor answer
might just discuss random cases on economic loss or negligent misstatement
without linking them in any coherent way and not referring to the Hoffmann quote.
Question 8
A small block of expensive flats has recently been completed near to
St David’s Castle, a popular tourist attraction in the centre of the coastal town
of Seaview. The Ahmed family has moved into one of these flats, which
features large glass doors that open onto a wraparound balcony. The family
are distressed to discover that visitors to the Castle are peering into their
home with binoculars. Mr Ahmed has complained to Historic Britain, who
owns the Castle, but it claims that it can do nothing. When Mr Ahmed
threatens legal action, Historic Britain responds by installing viewing
telescopes on the castle ramparts, which causes significant worsening of this
apparent breach of privacy. Historic Britain has now begun staging historic
re-enactments in the Castle grounds at weekends. These involve the firing of
canons, the noise of which is particularly distressing to the inhabitants of
Seaview and the residents of the veterans’ hospital in Seaview.
Advise the parties.
General remarks
This typically popular problem question raises standard issues of nuisance (public,
private and possibly statutory). The scenario is particularly similar to that arising in
the currently contentious case of Fearn v Tate.
Hunter v Canary Wharf, Fearn v Tate, DeKeyser v Spicer, St Helen’s v Tipping,
Sturges v Bridgeman, Robinson v Kilvert, Christie v Davey, Crown River Cruises.
Common errors
No common errors.
identify all the possible nuisance-related actions arising from the scenario and apply
the law logically to the facts. It would demonstrate an understanding of the nature of
the nuisance torts in which competing interests must be balanced. In addition to
private nuisance, there is potentially public nuisance regarding the historic re-
enactments, or statutory nuisance actionable by the local authority on behalf of the
community. There is no apparent Rylands v Fletcher action. Potential defences and
remedies should be included.
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spent too much time on private nuisance, to the exclusion of public or statutory
nuisance. Good organisation, possibly based around the different types of damage,
and clear writing are always important.
Question 9
‘… [T]he publication of the photos and articles in question, of which the sole
purpose was to satisfy the curiosity of a particular readership regarding the
details of the applicant’s private life, cannot be deemed to contribute to any
debate of general interest to society despite the applicant being known to the
public.’ (Von Hannover v Germany.)
Discuss with reference to the tort of misuse of private information.
General remarks
The theme of this essay question is the new tort of misuse of private information
and the focus is the way case law has evolved regarding the concept of public
interest, as it relates to Art 10 of the ECHR (freedom of expression), sometimes
used to justify breach of the Art 8 right to privacy.
Campbell v MGN, HRH Prince of Wales v AN, von Hannover v Germany, Mosley v
NGN, PJS v NGN, Richard v BBC, ZXC v Bloomberg, HRA 1998, Arts 8 and 10
ECHR.
Common errors
No common errors.
trace the development of the law of misuse of private information with focus on the
second of the Campbell requirements: the ‘balancing’ exercise’ between Articles 8
and 10 and the concepts of ‘legitimate aim’, ‘pressing social need’ and ‘necessary in
a democratic society’ regarding publication. Additionally, the distinction between
what is in the public interest and what the public is interested in.
Answers to essay questions must be cogently argued, with assertions supported by
relevant case and/or statutory authority and relate specifically to the question set
and, here, refer directly to the quotation.
failed to achieve the above. They lacked any sense of the context of this developing
area of the law, without analysis or engagement with the conceptual challenges in
this area, as illustrated by case law.
Student extract
Protection of privacy and the use of private information is a relatively new
area to UK Law and is indirectly protected under English law. Human Rights
Act 1998 as well as the tabloid press of Article 8 & 10 ('Balancing exercise');
HRA s. 12(1) and (4) have developed the need for the protection of privacy.
With new technology floating around and the world getting much smarter, it
was important for the protection of privacy as well as the misuse of private
information whether it be the normal man or the Royal family to be protected.
The publication (misuse) of private information is a sever breach to one's
personal life, in the case of Campbell v Mirror Groups Newspapers (2004)
Lord Hoffmann described the cause of action as a new variant of breach of
confidence but one which has 'firmly shaken off the limiting constraint of the
need for an initial confidential relationship'. With respect to the case of Von
Hannover v Germany, the issue arose, when there was [sic] publications of
photos from the private life of the applicant, infringed her right to respect her
11
private and family life under Article 8 of the ECHR. Article 8 of the ECHR
states that, everyone has the right to respect for his private and family life, his
home and his correspondence. Continuously, there shall be no interference
by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others. Whether the
photos of a person's social life are of general interest to the general public it
is not right for their rights to be inf[r]inged upon.
In the case of Sir Cliff Richard v BBC and the Chief Constable of the South
Yorks[h]ire Police (2018), Mr Justice Mann applied the balancing exercise
between Article[s] 8 & 10 from McKennitt v Ash to determine the
proportionality of the publicity. It was held that, as a general principle, a
suspect has a reasonable expectation of privacy in relation to a police
investigation and this need to be comprised in the course of a search.
Despite the high profile of the claimant, there was no persuasive public
interest in publicizing details of an unsubstantial allegation against him
merely in order to 'satisfy the curiosity of a particular readership'. The BBC's
Article 10 defense was not assisted by the subterfuge they had used to
access the story, nor was the sensationalist tone of the resultant broadcast.
Continuously, the tort of 'intrusive into private life' was endorsed by the SCJ
in the case if PJS v News Group Newspaper (2016) as a way of dealing with
events not involving publication of private information such as emotional
harm or embarrassment cause by photographs of private activities e.g. of
medical/sexual nature.
Whether articles are posted to speculate [on] the private matters of these
individuals, this is all it is speculation, until they are confirmed they can satisfy
the general readership, however, when photos are posted showing these
people in 'embarrassing', 'anger', 'hateful' moments this can impact the lives
of these people with a large-scale audience picking apart them which in turn
causes harm the [sic] these individuals.
Comments on extract
Answers to essay questions must be cogently argued, with assertions supported by
relevant case and/or legislative authority and relate specifically to the question set.
The focus of this question is the second of the Campbell requirements: the
‘balancing exercise’ between Articles 8 and 10 and the concepts of ‘legitimate aim’,
‘pressing social need’ ‘necessary in a democratic society’ regarding publication as
well as the distinction between what is in the public interest to know rather than
what the public are interested in. This answer included much relevant case law and
the emerging criteria courts use in determining the above ‘balance’. The strengths
of this answer, which was marked at the high 2:2 level, are that it understands and
addresses the content of the quote, it stays relevant, quotes from a case and is
generally accurate. It would have received a higher mark if it had included more
detail: for instance the relevant facts of von Hannover and PJS. Additional relevant
cases include HRH Prince of Wales v AN, Mosley v NGN, ZXC v Bloomberg. It
would have benefitted from careful proof-reading.
12

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Tort Report 2022 B

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Examiners’ reports 2022

Examiners’ reports 2022

LA2001 Tort law – Zone B

Comments on specific questions

Poor answers to this question…

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