2024 Tort Law Seminars (Revised)

The Law of Tort
LAWS6510
2023-24
Seminar Guide
This document contains all the seminar worksheets for this module. Seminars are two-hours long and
will be the core part of the teaching, with lectures providing a framework and overview of the law.
There are eight seminars and one workshop in total – the workshop takes place in week 30 in place of
the usual seminars. Students should familiarise themselves with the module teaching arrangements
as detailed in the Module Guide.
Reading for each seminar is detailed on each seminar worksheet. Students should undertake this
reading in preparation for the seminars, to get the maximum benefit from seminar learning.
The core textbook for this module is Horsey and Rackley’s Tort Law (H&R). Many of you will already
have the 7th edition from the year 1 book bundle. If not, a newer 8th edition is available: see Module
Guide. We have referenced both books throughout.
The worksheets also include questions to guide your reading. You should come to seminars prepared
to discuss the questions listed. These will form the basis of the seminar discussion. However, it may
be that we do not cover all the questions in the time allocated – and our discussion may be broader
than the written questions. If you have any questions after having done the reading, and having
attended and contributed to the seminar, then do go along to see your seminar leader during their
office hours (listed on Moodle).
For even deeper understanding of each week’s topic, including for assessment preparation/exam
revision, see the module’s online reading list at https://rl.talis.com/3/kent/lists/0063103C-6282-
A81C-610A-F704C183396F.html
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KLS | Law of Torts Seminar Guide |2023-24
Seminar 1: What is tort law and what is it for?
A: Aim
 To re-introduce and explore some of the possible reasons for imposing liability in the law of tort.
 To start thinking about some of the key ideas in debates about tort, notably fault, corrective justice and
compensation culture.
B: Reading
Essential reading (i.e. you are expected to have completed this reading before your seminar)
 Horsey and Rackley: chapter 1 – either the 7th edition (2021) or 8th edition (2023) is okay.
Further reading (i.e. reading that will deepen your understanding of the points raised by the seminar. You can
read this before or after the seminar – or maybe both!)
 Peter Cane and James Goudkamp, Atiyah’s Accidents, Compensation and the Law (CUP, 9th edn, 2018)
section 2-2.4 (e-book available from library).
 Jonathan Sumption ‘Abolishing Personal Injuries Law – A Project’ Personal Injuries Bar Association
Annual Lecture, 16 November 2017: https://www.supremecourt.uk/docs/speech-171116.pdf
 Jonathan Morgan ‘Abolishing personal injuries law? A response to Lord Sumption’ [2018] Professional
Negligence 122.
Note: for even deeper understanding of each week’s topic, or for assessment preparation/exam revision, see
the module’s online reading list at https://rl.talis.com/3/kent/lists/0063103C-6282-A81C-610A-
F704C183396F.html
C: Questions for consideration in the seminar
1. Imagine we live in a fictional universe where concepts (like love or gravity) take a human form. Within
this world, you become well acquainted with Tort Law as a person. For each of these questions, write
1-3 sentence answers that describe what type of person Tort Law is:
 How would you describe Tort Law (as a person)?

 What other concepts is Tort Law friends with?
 How would a person who is friends with Tort Law describe them?
 How would a person who doesn’t get along with Tort Law describe them?
 Every person changes over time; how would you like to see Tort Law as a person change?1
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This is adapted by from a question posed by Joy Twemlow in ‘Let me introduce my friend, law: a pedagogical tool
for supporting diversity and critical thinking in the legal classroom’ (2023) The Law Teacher 239.
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To prepare your answers, complete the exercises and answer the questions on the next page.
2. Situating tort law
Think about where the law of tort in general fits within the broader legal context and complete the table
below.
Criminal Law Civil Law Public Law

Who initiates (or has
‘burden of proof’)?
What is the aim?
To what standard of
care?
What is the response if
successful?
3. What interests are protected by tort law?
Tort law protects a wide variety of interests. Complete the table below. We’ve completed the first column for
you. Feel free to add additional rows. Which interests are not protected by tort law?
Protected interest Damage/Harm Typical tort used
Life and good heath: body (incl

brain) and mind, from accidents
or disease
Tangible real property (land)
and moveable property
(chattels)
Intangible property (IP, debts)
Reputation
Economic/financial; contractual
interests
Autonomy (eg unwanted
physical contact, privacy, family
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etc)
4. What is the purpose of tort law?
Re-read Woodroffe-Hedley v Cuthbertson (in the textbook reading) and answer the questions below.
a) What happened? What was the legal outcome?
b) Is this an example of corrective justice at work? Are there any factors here which make it strained to
see this as an example of corrective justice?
c) Is the case for liability in this kind of situation weaker or stronger than in standard cases such as road
or work-related accidents?
d) What other purposes can tort be said to have apart from compensation for wrongs?
e) Can the other torts be said to have the same purposes as the tort of negligence?
5. A compensation culture?
Consider the following, taken from the pause for reflection box in H&R on p 14.
a) Leslie, an affluent 80-year-old, crashes his car while drunk and loses a leg.
b) Joan, an 18-year-old single parent, loses a leg when, while working as a traffic warden, she is struck
by an unidentified hit and run driver.
c) Mary, as a result of congenital defect, is born with only one leg. She is now 5.
d) Dillon loses a leg as a result of contracting a serious disease.
e) John, a “career burglar”, loses leg after being shot by a householder during a break in.
Which of these people should receive compensation? Who or where should the compensation come from?
What is meant by “compensation culture”? Even if it exists to the extent some claim, is it necessarily a bad
thing? See if you can find examples of the “compensation culture” in newspaper reports that you can bring
along to support your answer.
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Seminar 2. Negligence: duty of care
A: Aim
 To introduce and explore the basic structure of the tort of negligence.
 To understand the role played by the duty of care concept in negligence.
 To improve your ability to read cases, and analyse and use legal arguments.
B: Reading
 Horsey and Rackley: chapters 2 and 3 – either the 7th edition (2021) or 8th edition (2023) is okay.
 Darnley v Croydon Health Services NHS Trust [2018] UKSC 50:
https://www.supremecourt.uk/cases/docs/uksc-2017-0070-judgment.pdf
 Jonathan Morgan Great Debates in Tort Law chapters 3, 6 and 7.

 Horsey and Rackley: chapters 4, 6 and 7.
 Craig Purshouse ‘The Impatient Patient and the Unreceptive Receptionist: Darnley v Croydon Health
Services NHS Trust’ [2018] UKSC 50 (2019) 27(2) Medical Law Review, 318–329.
 Nicky Priaulx ‘Endgame: On Negligence and Reparation for Harm’ in Janice Richardson and Erika
Rackley (eds) Feminist Perspectives on Tort Law (Routledge 2012) pp 36–54.
1. Draw a diagram setting out the main elements (or ingredients) of the tort of negligence. Come to the
seminar prepared to discuss it.2
2. Read Darnley v Croydon Health Services NHS Trust [2018] UKSC 50.
Use the suggested questions below as guidance for the types of questions you should be asking as you read
cases. You may find it helpful to read the press summary (https://www.supremecourt.uk/cases/docs/uksc-
2017-0070-press-summary.pdf) to guide your reading (but remember, this is not part of the decision).
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We will ask you do this a number of times during this module. This is because we think it is a helpful way of
‘seeing’ how the various concepts and elements of the tort of negligence fit together. There is no requirement to make
your diagram linear – it could be a flowchart, spider-diagram, mind-map or some other form of ‘knowledge organiser’.
Alternatively if you prefer to write out the various stages that is fine too.
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Rather than starting at the beginning and working your way through, skim the facts and the procedural history
first, then go to the conclusions reached by the judge(s) and then try to unpick the reasoning by working
backwards through the judgment. Come to the seminar prepared to discuss your answers. You may find it
helpful to print out the case and to annotate a hard copy. In any event, make sure you make a note of the
relevant paragraph numbers:
A) Which ingredients of the tort of negligence were at issue in this case? Put differently, what legal
issue(s) was the Supreme Court asked to resolve? Try to phrase the issue as a question requiring a
binary (yes/no) answer.
B) Why had the claimant lost at first instance and in the Court of Appeal?
C) What did the Supreme Court decide?
D) What were Lord Lloyd-Jones’ main reasons for finding a duty of care?
E) Do you agree with the decision? Why?
3. What purpose does the concept of duty of care serve? Why shouldn’t everyone who falls below the
standard of care of the reasonable person be liable if they injure someone?
4. How is a duty of care established in so-called ‘novel’ cases?
5. Why and/or in what circumstances might a court be reluctant to impose a duty of care?
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Seminar 3. Negligence: duty of care: psychiatric injury (REVISED)
PSYCHIA
A: Aim
 To explore the development of common law rules in the area of recovery for ‘pure’ psychiatric injury,
particularly those relating to primary and secondary victims.
 To practice legal problem-solving techniques in relation to ‘bite-sized’ problem scenarios, focusing on a
specific area of negligence law, namely liability for psychiatric injury.
 To engage with policy arguments relating to this controversial area.
B: Reading
 Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 – read Lord Leggatt and Lady Rose’s majority
judgment and Lord Burrow’s dissent only
 Listen to Kings Chambers Debrief S2E1: Secondary Victims in Clinical Negligence: Thus Far and
Absolutely No Further:
https://podcasts.apple.com/gb/podcast/kings-chambers-podcast/id1388312435?i=1000641443014
 Jonathan Morgan Great Debates in Tort Law, chapter 9.
 Donal Nolan ‘Alcock v Chief Constable of South Yorkshire Police (1991)’ in Charles Mitchell and Paul
Mitchell (eds) Landmark Cases in the Law of Tort (Hart Publishing, 2010), p 273.
 Andrew S Burrows and John H Burrows ‘A shocking requirement in the law on negligence for
psychiatric illness: Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588’
(2016) 24(2) Medical Law Review 278–285.
1. Draw a diagram setting out the main elements (or ingredients) of recovery for pure psychiatric harm in
negligence, including the distinction between primary and secondary victims. Try, where possible, to
include the names of the cases where the rules/distinctions come from. Come to the seminar prepared
to discuss it.
2. Why does the law distinguish psychiatric injury from physical injury? Why do you think judges were
historically more dubious about psychiatric harm cases compared to those involving physical injury?
3. Why have the courts found it so difficult to resolve a satisfactory approach to psychiatric harm?
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4. Read Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1
This is a long judgment. It is the first consideration of the law in this area by the Supreme Court for almost 30
years. It will reward careful reading – not least because it offers a clear summary of the key case law in this
area.
You should read both the majority judgment (Lord Leggatt and Lady Rose) and the dissenting judgment from
Lord Burrows.
Use the suggested question below as guidance for the types of questions you should be asking as you read
cases. You may find it helpful to read the press summary - https://www.supremecourt.uk/cases/docs/uksc-
2022-0038-0044-0049-press-summary.pdf - to guide your reading (but remember, this is not part of the
decision). Come to the seminar prepared to discuss your answers. You may find it helpful to print out the case
and to annotate a hard copy. In any event, make sure you make a note of the relevant paragraph numbers:
A) Outline the facts of the appeals. Why had the claimants lost in the Court of Appeal?
B) What did the majority of the Supreme Court decide? What was their reasoning?
C) What was role did policy play the majority’s decision? Do you think it made a difference that the claims
were being brought against the NHS?
D) What impact will the decision have on the ability of secondary victims to recover in cases of
clinical/medical negligence?
E) Do you agree with the decision? Why?
F) What did Lord Burrows argue in his dissenting judgment?
5. Consider the following scenarios. Under the current law, will the claimants be able to claim damages
for psychiatric harm? Use case law to support your answers.
a) Apollo was cycling home and suffered shock after witnessing a collision between a car and a pedestrian
who was crossing the road near him; the pedestrian lay on the road, very seriously injured, for some
time.
b) The same as a) except that the pedestrian is Apollo’s sister, Beau. Although Beau survives the accident,
she suffers from partial paralysis, and Apollo suffers serious panic attacks whenever he is near a busy
road.
c) Caitlin was watching the London marathon on television; her husband was taking part. To her horror,
she saw him run down by a car, suffering life threatening injuries as a result.
d) Diego witnesses Ellen, his wife, going through a very long and painful labour prior to giving birth to a
stillborn child. The hospital care she received was negligent, including the delay of a caesarean section
until it was too late to save the child. Both Diego and Ellen subsequently suffer from PTSD.
e) Fred was walking along the pavement in the quiet village where he lives. A car driven by Gael (who was
texting on his phone) mounted the pavement near Fred and only missed Fred because he jumped out
of the way just in time. Fred, who is of a very nervous disposition, is traumatised and is unable
thereafter to walk in proximity to traffic.
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f) Harper collapsed and died from a heart attack while shopping with her young children. The children
suffered PTSD after witnessing their mother’s collapse, its traumatic aftermath, and her death. It
subsequently emerged that her death had occurred as a result of a negligent failure by the Cantershire
NHS Trust to diagnose and treat her coronary artery disease six months earlier.
g) Ida and Josef are both police officers.
i) Ida is on duty near a railway station when a major train accident takes place. Many are killed and
seriously injured, and Ida runs to help the rescue effort. She works at the scene for the next 10 hours
and has with some very upsetting experiences. She suffers from PTSD as a result.
ii) Josef has complained about being bullied by his superior over a long period, but the police force
does not take it seriously. Eventually, he suffers depression as a result.
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Seminar 4. Negligence: breach & defences
SE
A: Aim
 To understand the role played by breach of duty in the tort of negligence.
 To consider the role played by reasonableness in setting the standard of care.
 To outline the elements of three key defences to a claim in the tort of negligence.
B: Reading
Essential reading (i.e. you are expected to have completed this reading before your seminar).
 Horsey and Rackley: chapters 8 and 10 – either the 7th edition (2021) or 8th edition (2023) is okay.
 Jackson v Murray [2015] UKSC 5.
 Haim Abraham ‘Queering the Reasonable Person’ in Kirsty Horsey (ed) Diverse Voices in Tort Law
(Bristol University Press, 2024). Read via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=4206445#:~:text=Haim%20Abraham,-UCL%20Faculty%20of&text=Critical%20lenses%2C
%20such%20as%20feminist,class%2C%20white%2C%20heterosexual%20man.
 James Goudkamp and Donal Nolan, ‘Contributory Negligence in the Twenty-First Century: An Empirical
Study of First Instance Decisions’ (2016) 79 Modern Law Review 575
On breach:
1. Write a TikTok or X profile (or similar) for the ‘reasonable man’ (around 160 characters or 22-30 words)
- you can include a picture if you wish.3 Come to the seminar prepared to discuss it.
2. What does it mean to say that the standard of care is ‘objective’? Why does the law adopt this
objective approach? Is it fair? Is the standard of care always and in all respects objective?
3. What factors do the courts weigh up when considering whether a defendant breached a duty of care?
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A TikTok Profile typically includes a username, short bio, a count of how many people are following you and
whom you are following, and all the public videos you’ve created. Tips for writing an X (Twitter) profile: include only the
most interesting information because you only have 160 characters to describe yourself. Be authentic. Be honest in your
summary and personable to encourage others to follow your account. Add an accomplishment.
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4. Liability in the tort of negligence is typically said to be fault-based rather than strict. Do the rules on
breach support this?
5. What is the thinking behind the Bolam test? What qualification was put on it in Montgomery?
On defences:
6. Draw three diagrams outlining the key elements of the defences of contributory negligence,
consent/volenti and illegality. Try where possible to make links to key cases and/or statutes. Come to
the seminar prepared to discuss them.
7. Read Jackson v Murray [2015] UKSC 5.
You may find it helpful to read the press summary (https://www.supremecourt.uk/cases/docs/uksc-2014-0070-

press-summary.pdf) to guide your reading (but remember, this is not part of the decision).
By now, you should have a sense of how to approach reading tort cases. Remember the facts matter. What
happened; where are we at in the proceedings; why have we ended up in this court; what issue(s) is this court
asked to decide; what does the court decide and – crucially – why? On what do the majority and minority
disagree? Do you agree with the outcome? Why or why not?
Try to write out a short case note in your own words which effectively answers all these questions (and more)
in relation to Jackson v Murray. You need to be able to explain cases and your thinking to yourself in a way that
you understand before you have any hope of being able to explain them to anyone else.
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Seminar 5: Negligence: causation & remoteness
A: Aim
 To practice legal problem-solving techniques in relation to ‘bite-sized’ problem scenarios, focusing on a
specific area of negligence law, namely causation.
 To think about causation in slightly more theoretical terms with a view to relating causation to some of
the broader themes of the course.
B: Reading
 Jonathan Morgan Great Debates in Tort Law chapters 4 and 5.
1. Draw a diagram setting out the main elements of causation in tort law. Come to the seminar prepared
to discuss it.
2. What is the distinction between factual and legal causation?
3. In each of the following situations what causation issues arise in relation to the potential liability of D?
a) Kia felt ill and went to the A&E department of the local hospital. She was seen by the doctor (D) and
sent home, where she died hours later of a brain haemorrhage. Medical evidence established that the
doctor’s examination had been inadequate, but that there was only a 40% chance that, even if she had
been treated with reasonable care, Kia would have survived. [In answering this question, be sure you
understand the difference between the balance of probabilities rule and a ‘lost chance’ claim.]
b) Laszio’s leg was injured at work due to the negligence of his employer, D. He was left with a serious
limp as result. However, one year later, serious vascular disease (which was unrelated to the work
injury) resulted in him having both legs amputated.
c) While walking his dog, Myk is hit and fatally wounded by a bullet. The expert evidence establishes that
the shot was fired by one of two negligent farmers: D1 or D2. However, it cannot be established which
of the farmers fired the fatal shot.
d) Niamh, a factory worker, is exposed to excessive noise at work over several years. Niamh has also
worked as a self-employed DJ at weekends over a similar period where her exposure to loud music
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regularly exceeded safe levels (i.e. > 90dBA). Expert evidence states that both the loud noise at work
and her work as a DJ have contributed to her hearing loss.
e) Olaf develops ‘Long-Covid’. Olaf was negligently exposed to the virus at work and later in hospital
whilst being treated for an unrelated medical condition. He obtains expert evidence that suggests each
exposure materially increased the risk that Olaf would develop Long Covid.
f) Pedro, aged 8, lives near a nuclear power plant, where nuclear materials have been processed for over
40 years by D. He contracts leukaemia. It has been established that the type of leukaemia that Pedro
has can be caused by the kind of radiation emitted from the power plant, although cases occur which
cannot be linked to such radiation. The statistical epidemiological evidence suggests that, in the village
where Pedro lives, there are 50% more cases than would be expected as the ‘background’ level of
leukaemia.
g) Quill’s negligent driving caused a collision on the motorway; Rufus, the driver of one of the other
vehicles, was dazed (but otherwise uninjured) by the collision and sat on the side of the road. A police
car, dashing to the scene of the accident, collided with and seriously injured Quill.
4. What would happen to tort law, in particular the tort of negligence, if there was no requirement to
prove causation?
5. Is the legal concept of causation immune from the fallacy of mistaking correlation for causation? Does
it matter?
6. What does it mean to say that some act or event has broken the chain of causation?
7. Rafael’s negligence puts Sani in hospital. The injuries Sani suffers can be treated and, if they are
treated, she will recover fully. Will Rafael be liable for Sani’s death if:
a. A doctor negligently administers a fatal dose of the drug Sani requires?
b. A doctor intentionally administers a fatal dose of the drug Sani requires?
c. Another patient murders Sani?
d. There is a fire in the hospital which kills Sani?
e. Sani refuses all treatment and dies?
8. Why do we have remoteness rules? What is the basic remoteness rule used in the tort of negligence?
9. How have the courts identified ‘kinds of loss’ for the purposes of the remoteness rule? Why does it
matter how we identify such kinds of loss?
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Workshop: Negligence: putting it all together
This workshop will take the place of seminars this week. Check your timetables for details of where and
when your workshop will take place.
A: Aim
· To consider a more complex negligence problem than those we have encountered in seminars to date,
and to apply the doctrinal knowledge gained from lectures, readings and previous seminars to that
complex problem scenario. This will require you to:
o Organise the facts and evidence within the problem.

o Identify the nature of potential claims in the tort of negligence.
o Identify the main legal issues on which the claim will turn (i.e. identify the key obstacles to (full
or partial) success?); identify subsidiary issues (i.e. issues which may require some analysis but
are more straightforward).
o Independently research the relevant law.
o Develop in-depth and relevant legal arguments in relation to the main legal issues.
B: Reading
There is no new reading for this workshop, however you may find it helpful to review the reading set for
seminars 1-5, in particular revising any aspects you found difficult.
C: Questions for consideration in the workshop
You should identify the bases of all the potential claims and defences in general (as appropriate). Consider
which are the strongest claims and which are weaker ones, and how the parties would argue their positions.
This should include consideration of case law and other relevant legal material. It is strongly advised that you
draw up a chronology of events within the problem question as a starting point to organising your thoughts.
You are not required to quantify the value of the claim. You will not be required to value any claim in the exam
either.
The question for the workshop is on the next page.
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Problem Question
Hugo had been suffering from a pain in his right leg and went to see Dr Clark. Dr Clark diagnosed that Hugo was
suffering from a bacterial infection, the normal treatment for which would be a course of antibiotics. Dr Clark
was, however, concerned with what he considered to be the over prescription of antibiotics by the medical
profession, so instead advised Hugo to eat 50 grams of walnuts a day for two weeks. Dr Clark had heard about
this as a treatment from Dr Zen, when he attended an alternative medicine event a few months ago.
Dr Clark also advised Hugo to get out in the fresh air and walk as much as possible. He failed to inform Hugo
that research had shown that in 2% of cases those with his condition who walked more than one mile a day
subsequently suffered from permanent paralysis. Hugo followed Dr Clark’s instructions.
A few days later Hugo and his wife, Deanna, went out walking in Canonbury. Deanna was glad to be out of their
house as she had been feeling quite low as a result of looking after Hugo. Whilst out walking Deanna had
stopped to do up the laces of her trainers, and Hugo had carried on walking and was about 10 metres in front
of her when a car with two police officers in it, PC Hap and PC Hazard, pulled up. The police officers had spotted
a wanted criminal, Dodger, who was walking about five metres in front of Hugo. PC Hap and PC Hazard
attempted to arrest Dodger, and a scuffle ensued. The three men fell on Hugo, who was knocked to the
ground, banging his head on the pavement. The blow to his head led to permanent paralysis of his right leg.
Deanna witnessed her husband being knocked to the ground and subsequently suffered a recognised
psychiatric harm.
Evidence later showed that the walnut treatment was having no positive benefit on Hugo’s infection, and that
it was highly likely his right leg was going to suffer permanent paralysis.
Identify and analyse any legal claims that Hugo and Deanna might bring.
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Seminar 6: Occupiers’ liability
A: Aim
· To understand the statutory scheme for occupiers’ liability, and the use of statutes in tort law more
broadly.
· To articulate and apply the differences between the Occupiers’ Liability Act 1957 and Occupiers’
Liability Act 1984.
B: Reading
 Horsey and Rackley: chapter 11 – either the 7th edition (2021) or 8th edition (2023) is okay. But note
that Ovu (below) is not discussed in the 7th edition.
 Ovu v London Underground Ltd [2021] EWHC 2733 (QB)
 Tomlinson v Congleton BC [2003] UKHL 47

 Phillip Sales [Lord Sales] ‘Exploring the Interface Between the Common Law of Tort and Statute Law’,
Annual Richard Davies Lecture for the Personal Injuries Bar Association 29 November 2023:
https://www.supremecourt.uk/docs/speech-231129.pdf
 Jonathan Morgan ‘Tort, Insurance and Incoherence’ (2004) Modern Law Review 384.
1. Why might Parliament choose to enact a statute in an area already governed by the common law?
2. Draw a diagram outlining how a claimant whose damage has been caused by defective or dangerous
premises might bring a claim using either the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act 1984.
Come to the seminar prepared to discuss it.
3. In each of the following situations what occupiers’ liability issues arise in relation to the potential liability of
D? Make sure you are able to cite relevant case law and/or section of the OLA 1957 or OLA 1984 to support
your answers.
a) After heavy snowfall, Toby is on his way his tort lecture at Kentshire University (KU) when he slips on
ice, breaking his ankle. All students had been emailed by KU Estates earlier that morning, advising them
to ‘take care in coming to classes’.
b) Una is not studying at the University because she is 7 years old. She is injured when she decides to join
others sliding down a snowy bank. Una is a regular visitor on campus, her mother works in the library
and she often waits in the library for her mother to finish work. At various entry points into KU’s
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campus there were signs that included the statement “any access by members of the public to this
private land is by licence only and may be revoked at any time”.
c) Later that evening, there is an impromptu snowball fight on the other side of the KU campus. In the
process of trying to evade several incoming snowballs, Vi loses his balance. He stumbles into some
waist-high plastic fencing running alongside a deep ditch. He falls through the fencing and into the
ditch, breaking his right leg and suffering a whiplash type injury to his neck and back. The ditch, which
was designed to carry a water pipe to one of KU’s new building projects, had been dug several months
earlier. Earlier that night Vi had shared a marijuana-filled vaporiser. Medical evidence obtained on Vi’s
behalf suggests that his injuries were less serious than they might have been: his intoxicated state
meant that he had not “tensed up” in the fall.
d) Wilbur, a final year law student, has been working hard in the library. He is in a rush to get home and
so decides to take a short cut over a field owned by the university. The field is fenced off with a sign
saying “Do not enter”. The university knows that students regularly use this short cut but tolerate it,
even though the students have to climb trees to enter it, as they reason it stops the students moaning
about the student halls from being too far away from the main campus. Halfway across the field Wilbur
changes his mind and decides to head back to the main path. Unfortunately, he slips as he is climbing
the tree back over the fence and breaks his arm and rips his expensive jacket. He is unable to complete
his tort assignment.
e) Concerned with a recent spate of burglaries in the town, Xander breaks some bottles and cements the
broken glass to the top of his 7-foot wall outside his property. One night, Yrsa, a ‘career burglar’
attempts to scale the wall but, unable to see the broken glass, she sustains severe injuries to her hands.
4. In Ovu v London Underground Ltd [2021] Master McCloud suggested that:

“Adults must be responsible for their own actions. It would be disastrous for society and
contrary to public interest, if adults … could get intoxicated and incapable, relying on a duty of
care on others to ensure no harm befalls them, or to compensate them when it inevitably
does.”
Do you agree? What about adults who are not intoxicated?
Write a short (one-side A4) essay plan setting out how you would answer this question paying specific attention
to occupiers’ liability. You should use statutes and case law to support your answer. Be prepared to discuss and
work through your plan in the seminar.
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Seminar 7: Land torts: Private nuisance and the Rule in Rylands v
Fletcher
This seminar will look at private nuisance and actions under Rylands v Fletcher only. It will not cover public
nuisance or trespass to land – and so neither will the exam.
A: Aim
· To understand the significance of the so-called ‘land torts’ and their relationship to negligence and
each other.
· To outline and apply the key elements of the tort of private nuisance and the rule in Rylands v Fletcher.
B: Reading
 Horsey and Rackley: chapter 18 sections 18.1 and 18.3 only and chapter 19 – either the 7th edition
(2021) or 8th edition (2023) is okay – but note that the discussion of Fearn in the 7th edition relates only
to the Court of Appeal decision. You will need to make sure that your understanding of Fearn is up to
date.
 Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4.
 Jo Lawson-Tancred, ‘Tate Modern Reopened its Controversial Viewing Platform with Restricted Access
to Protect its Neighbors’ Privacy’ Artnet News (26 October 2023).
 Kate Andrews, ‘What a nuisance: the impact of Fearn v Tate Gallery on future nuisance claims’:
https://www.lawsociety.org.uk/topics/property/what-a-nuisance-the-impact-of-fearn-v-tate-gallery-
on-future-nuisance-claims.
 Rachel Hall, ‘Tate Modern viewing platform invades privacy of flats, Supreme Court rules’ The Guardian
1 February 2023.
 Oliver Wainwright, ‘The Tate Modern privacy ruling could lead to a worrying future for cities’ The
Guardian 1 February 2023.
 Jonathan Morgan, Great Debates in Tort Law chapters 10, 11 and 12 (start with chapter 10).
 Brian Simpson, ‘Victorian Judges and the Problem of Social Cost: Tipping v St Helen’s Smelting
Company (1895)’ in Leading Cases in the Common Law (OUP 1995) p 163.
 Horsey and Rackley chapter 18 section 18.4 and 18.5.
C: Questions for consideration in the workshop
18
1. Draw a diagram setting out the main elements of private nuisance and claims under the rule in Rylands
v Fletcher. Come to the seminar prepared to discuss it.
2. Read Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4.
You may find it helpful to read the press summary (https://www.supremecourt.uk/press-summary/uksc-2020-

0056.html) to guide your reading (but remember, this is not part of the decision). It is a long judgment so pace
yourself. You do not need to make notes on every paragraph, but you should try to read both the majority
judgment and the dissent.
You should come to the seminar prepared to discuss the case. When reading the case – bear the following
questions in mind (and note the paragraph numbers where you find the answers):
 What happened?
 What issue(s) is this court asked to decide?
 What does the court decide and – crucially – why?
 On what do the majority and minority disagree?
 Do you agree with the outcome? Why or why not?
3. To what extent, if any, has Fearn changed the law on private nuisance?
4. What is the relationship between negligence, nuisance and Rylands v Fletcher?
5. Draft an outline answer to the problem question below. Make sure you use relevant case law to
support your answer.
Zoe runs a café, which specialises in traditional English fried breakfasts. It opens at 5am for taxi and truck
drivers and shuts at 6pm. Throughout this time, Zoe is busy in the kitchen, cooking sausages, bacon and eggs
for her customers. The extractor fan from the kitchen blasts out the smell of the cooking directly onto the
neighbouring property, which has been unoccupied for several years. At the end of each day, Zoe leaves the
leftovers and other waste collected throughout the day in rubbish bags at the back of the café.
Alonzo buys the unoccupied property next door to the café and spends a lot of money refurbishing it before
finally moving in. He knew when he bought the house that there was a café next door, but he did not know
how early it opened. The noise of people coming to the café, parking their taxis and trucks outside and chatting
with each other often wakes him up early and they often stand outside the café where they can look over the
fence and into Alonzo’s garden. This is made even worse in the summer when Alonzo sleeps with the window
open. Moreover, by having the window open, the smell of the cooking blown out from the extractor fan fills
Alonzo’s house. Alonzo is vegan and finds the stench of the fried meat disgusting. Moreover, rats have started
to come to feed on the food waste Zoe leaves in the rubbish bags at the end of the day. Alonzo’s is disgusted to
see rats running through his garden. One day, one of the rats bites Alonzo’s daughter, Bibi. In response, Alonzo
puts down rat poison in his garden. Unfortunately, this seeps through the ground and contaminates Zoe’s
drinking water supply. She has to close the café for 3 weeks while the issue is resolved.
19
Advise Alonzo and Zoe.
20
Seminar 8: Vicarious liability
A: Aim
· To articulate and understand the key justifications for the imposition of vicarious liability.
· To apply the key tests for identifying where vicarious liability might be imposed.
· To be able to distinguish vicarious liability and the concept of non-delegable duties of care.
B: Reading
 Horsey and Rackley: chapter 20 – either the 7th edition (2021) or 8th edition (2023) is okay. However,
the 7th ed does not discuss the UKSC decisions in Barclays Bank or WM Morrisons in depth and so you
will need to supplement your reading on these cases.
 WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12.
 Paula Giliker, ‘Vicarious Liability in the Supreme Court: Can we finally say it is no longer on the move?’
https://legalresearch.blogs.bris.ac.uk/2020/04/vicarious-liability-in-the-supreme-court-can-we-finally-
say-it-is-no-longer-on-the-move/.
 Lady Rose, On the Job? The Law on Status in a Gig Economy”, 2023 Denning Lecture, 7 December 2023:
https://www.supremecourt.uk/docs/speech-231207.pdf.
 A J Bell ‘Double, Double Toil and trouble’: Recent Movements in Vicarious Liability’ (2018) 4 Journal of
Personal Injury Law 235-47.
 Paula Giliker ‘Can the Supreme Court halt the ongoing expansion of vicarious liability: Barclays and
Morrison in the UK Supreme Court?’ (2021) 37(2) Tottel’s Journal of Professional Negligence 55–72.
1. What is vicarious liability? Who does vicarious liability benefit? What arguments have been offered in
support of vicarious liability? Which, if any, do you find persuasive?
2. Draw a diagram setting out the main elements of vicarious liability. Come to the seminar prepared to
discuss it. Make sure you refer to key case law.
3. How does the imposition of vicarious liability differ from a breach of a non-delegable duty of care?
21
4. Write/draw a timeline of key cases addressing vicarious liability since the Christian Brothers case in
2012.
5. The paradigm example of vicarious liability is an employer’s liability for torts committed by his
employee in the course of his employment. What makes a worker an employee? If there is no
relationship (contract) of employment, when else may vicarious liability arise?
6. Read WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12. Do you find Lord Reed’s
argument convincing? Did Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 go too far in
expanding the close connection test? Come to the seminar prepared to discuss your answer.
7. Mr S Claus employs Dasher to do deliveries. Is Mr Claus vicariously liable for Dasher’s torts in the
following examples?
a. Dasher deliberately runs over a pedestrian while making deliveries.

b. Dasher negligently runs over a pedestrian on the way home from work, driving the van S Claus
provided for his work.
c. Dasher has an argument with a customer to whom he was making a delivery. After work,
Dasher goes back to the customer’s house and punches him.
d. Dasher has an argument with a customer to whom he was making a delivery. After work,
Dasher happened to see the customer in the street and punches him.
What difference, if any, would it make if Mr Claus only employed Dasher during the month of December? At
other times of the year, Dasher works for Ms Phil Grimfather and Mr G Fawkes.
8. What has been the direction of travel of the doctrine of vicarious liability over the last decade or two?
What are the possible explanations for this movement?
22

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The Law of Tort

C: Questions for consideration in the seminar

 How would you describe Tort Law (as a person)?

2. Situating tort law

Criminal Law Civil Law Public Law

3. What interests are protected by tort law?

Protected interest Damage/Harm Typical tort used

Life and good heath: body (incl

4. What is the purpose of tort law?

 Jonathan Morgan Great Debates in Tort Law chapters 3, 6 and 7.

C: Questions for consideration in the seminar

4. How is a duty of care established in so-called ‘novel’ cases?

C: Questions for consideration in the seminar

C: Questions for consideration in the seminar

7. Read Jackson v Murray [2015] UKSC 5.

You may find it helpful to read the press summary (https://www.supremecourt.uk/cases/docs/uksc-2014-0070-

 Jonathan Morgan Great Debates in Tort Law chapters 4 and 5.

C: Questions for consideration in the seminar

2. What is the distinction between factual and legal causation?

o Organise the facts and evidence within the problem.

C: Questions for consideration in the workshop

The question for the workshop is on the next page.

 Tomlinson v Congleton BC [2003] UKHL 47

C: Questions for consideration in the seminar

4. In Ovu v London Underground Ltd [2021] Master McCloud suggested that:

C: Questions for consideration in the workshop

You may find it helpful to read the press summary (https://www.supremecourt.uk/press-summary/uksc-2020-

4. What is the relationship between negligence, nuisance and Rylands v Fletcher?

C: Questions for consideration in the seminar

a. Dasher deliberately runs over a pedestrian while making deliveries.

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