tort report 2013 a

Examiners’ report 2013

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LA3001 Law of tort – Zone A

Introduction

A disappointing number of candidates (though fewer than in 2012) failed to answer four questions. This is the most easily avoidable error of all. You must make sure that you answer the right number of questions: if not, you cannot do justice to yourself. Many candidates demonstrate that it is perfectly possible in the time to write four answers, even four excellent answers. Some of the extracts show how it is possible to express even complicated issues in a clear and relatively brief way.

There were fewer scripts this year that answered issues or advised parties not asked about by the Examiners, but see the comments on Questions 1 and 7. Please note that, although some illustrative cases are listed under each question, this does not imply that these are the only cases to be cited. Although generally these are the most important, there is often a considerable variety of available case law that candidates can choose from to illustrate their arguments.

Specific comments on questions

Question 1

Sydney is a professional boxer. During one fight he received a succession of punches from his opponent Tanzeer and seemed to become confused. Urban, the referee, however did not stop the fight or give Tanzeer any warning. At the start of the next round Tanzeer landed a punch on Sydney’s jaw and knocked him out. Sydney received emergency treatment from Victor, a doctor on duty at the ringside and was then taken by ambulance to hospital. On the way to hospital his condition deteriorated but Wanda, the paramedic in the ambulance, decided that it would be advisable to get him to hospital as quickly as possible rather than to carry out an emergency procedure in the ambulance. At the hospital he was treated by Xain, a consultant, but has suffered severe and permanent brain damage.

The medical experts are all now agreed (a) that no fault can be found with the treatment provided by Victor or Xain and (b), that, if Wanda had successfully carried out the difficult emergency procedure, Sydney would probably not have suffered the severe brain damage but would never have made a full recovery and would not have been able to resume his boxing career.

Advise Sydney.

General remarks Answers should consider two separate claims. The first is a claim in respect of the initial injury. The possible defendants are Tanzeer and Urban: more time should be

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spent on Urban than on Tanzeer. The second is a claim against Wanda (and her employers vicariously) for her arguable failure to treat him properly. Then the interrelation of the claims has to be considered if both Urban and Wanda are in breach of their duty of care.

Law cases, reports and other references the Examiners would expect you to use Wooldridge v Sumner, Vowles v Evans. Cases on medical negligence such as Whitehouse v Jordan and subsequent authorities. Cases on intervening cause such as Robinson v Post Office and Webb v Barclays Bank.

Common errors The most striking error was the large number of candidates who discussed in detail the liability of Victor and Xain. The facts state that all the medical experts are agreed that no fault could be found with their treatment: there is therefore no need to discuss possible claims against them. A few answers tried to justify the discussion by stating that according to Bolitho a judge could hold that a medical practice was irrational, but a judge could hardly come to that view if there is no medical evidence on either side at all critical of the conduct of the professionals.

Good answers to this question would… point out that Tanzeer had deliberately struck Sydney but that his conduct appeared to fall within the rules of the game to which Sydney had consented, and therefore actions in battery or negligence will fail. In Vowles v Evans (see Section 3.3.2 of subject guide) the Court of Appeal held that a rugby referee owed a duty of care to players. Although that case concerned rugby, the case will surely be followed in other dangerous sports. If candidates happened not to know that case, they should argue from first principles, but it is desirable to say something about why they think it fair, just and reasonable to recognise a duty on referees. For instance, in Vowles v Evans it was argued unsuccessfully that people would be unwilling to referee amateur games in particular if they could be held liable for injuries to players. The question then is whether Urban did not act as a reasonable referee would. If he is in breach of duty, then (subject to arguments about the impact of Wanda’s treatment) all the damage suffered by Sydney is foreseeable. Wanda as a professional has to show the care of a reasonable paramedic: a difficult judgment has to be made and a court might well conclude that she had a difficult to choice to make and a reasonable person might well have decided to rush Sydney to hospital while other reasonable ambulance crew might have decided to treat him on the spot. If she was negligent, did this cause Sydney’s injuries? It didn’t cause the loss of his career as a boxer because the facts state that, even if Wanda had been successful, he would not have been able to resume his career – accordingly only Urban can be liable for damages for loss of career. What about the severe brain damage? Did that break the chain of causation?

Poor answers to this question… wasted time on Victor and Zain as already stated. They also relied much too much on Baker v Willoughby and Jobling v Associated Dairies. It was noted last year that candidates frequently misapplied these cases. They are concerned with the unusual situation where there are two independent causes of the same damage. Here the two causes of the damage are not independent. Wanda’s duty was to take care to make Sydney better. The armed robbers who shot Mr Baker had no duty of care to cure his original leg injury.

Student extract Now Urban can say that Wanda’s act was a new and intervening cause breaking the chain of causation (Knightley v Johns) but by an analogy to Robinson v Post Office and Webb v Barclays Bank medical negligence or


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here by a paramedic would only break the chain of causation if it is grossly negligent which it does not look on the facts. Also it was said in Mahoney v Kruschich that some risk of medical negligence is entailed within the breach of duty. It is more likely (as it was preferred in Rahman v Arearose) that the court would apportion liability (Civil Liability (Contribution) Act 1978) between Urban and Wanda (if she is in breach) to the extent of their culpability.

Comment on extract This is a fairly good attempt to come to grips with some difficult law. It provides a very clear and succinct account of the causation issues that arose here and presents a very plausible solution to the problem. The case of Mahoney is a decision of the High Court of Australia from 1985: most candidates would of course not know of it but it is relevant to the argument. It is absolutely not essential to refer to it in order to get a good mark. The final sentence is not quite correct because although the court did apportion liability to the doctor and the original assailant, it was not on the basis of the 1978 Act. A difference between that case and the present problem is that the doctor in Rahman caused additional physical damage by his negligent treatment, whereas here Wanda merely failed to put right the damage already caused.

Question 2

‘The law of vicarious liability is on the move.’ (Catholic Child Welfare Society v Various Claimants (2012) per Lord Phillips)

Discuss this statement and explain how, if at all, recent developments promote the policy reasons for vicarious liability.

General remarks This case was referred to in a few places in the latest Recent developments material and the quotation used in the question was cited in that material. It was not advisable to tackle this question without having previously studied the case carefully. Lord Phillips gives some of the most important policy reasons for vicarious liability at [35] and [64]. These could then have been linked to the particular developments in this and other recent cases. The particular developments that figured in the 2012 case were these. When is a relationship (such as between the brothers and the Institute in this case) sufficiently like a traditional employment relationship to make it fair, just and reasonable to impose vicarious liability? To what extent is ‘control’ still relevant to establishing the relationship between ‘employer’ and ‘employee’? In what circumstances can more than one party be vicariously liable for the same tort? The question of when there should be vicarious liability for physical or sexual abuse within an employment relationship was extensively discussed in the judgment although it was not in dispute on the facts. Discussion of these could have been part of an overall account of the way vicarious liability is changing.

Law cases, reports and other references the Examiners would expect you to use Illustrative cases on identifying those for whom there could be vicarious liability, including: Mersey Docks and Harbours Board v Coggins & Griffith on borrowed servants; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and subsequent cases on shared vicarious liability; liability for criminal acts such as sexual abuse following from Lister v Hesley Hall and considered most recently in JGE v Portsmouth Roman Catholic Diocese.

A good answer to this question would… have put the emphasis on the 2012 case and on the issues it raised. It would have carefully distinguished between the questions of (i) whether a relationship

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sufficiently akin to employment existed and (ii) whether the tort was in the course of that relationship, noting that the decision in the 2012 case was primarily about the former although there was serious discussion of the latter. A really excellent answer might also have noted that Lord Phillips said that the law was ‘on the move’ and not that it had reached a new destination. So a brief perceptive paragraph about further developments would really have impressed (e.g. Lord Phillips refers to but does not expand on recent sex abuse scandals in the employment industry). More generally there is an issue as to whether there should be any connection (and if so what) between relationships to which vicarious liability attaches and other legal relationships (e.g. national insurance). The answer should definitely have devoted a paragraph to the policy reasons that determine the existence and character of vicarious liability.

Poor answers to this question… tended to give a rather out-of-date account of the traditional vicarious liability doctrine with very poor analysis of the relationships that give rise to vicarious liability and very little account of the 2012 case that was the subject of the question.

Question 3

Mars is employed as a sceneshifter at the studio of Orbital Films Ltd. He decided to move a tower structure from one part of the studio to another without dismantling it. He knew that this was contrary to the Film Sets (Construction and Use) Regulations 2007 made under statutory authority. As he moved it, the tower began to topple and then crashed. Castor and Pollux are freelance stuntmen who were working that day at Orbital’s studio. They had worked together for many years on dangerous stunts and had developed a complete trust in each other. At the time the tower fell Pollux was standing some distance away but could see the tower collapse towards the place where Castor was standing. He could not see exactly what was happening. The tower had a lattice structure and amazingly it collapsed in such a way that Castor was trapped uninjured, although he fainted and was completely hidden from view. He was discovered and released when the structure was lifted two hours after it fell. In the meantime, Ariadne, a receptionist at the studio, phoned Castor’s contact number and spoke to his granddaughter, Selene. She told Selene, ‘Your granddad’s in a bad way. Get your mum to come to the studio as fast as she can.’

Castor, Pollux and Selene have all suffered recognised psychiatric illnesses. Advise them.

General remarks There are three claimants all suffering from recognised psychiatric damage. All three of them might seek to establish liability on Orbital Films Ltd for the acts of their employee Mars, who may have committed the tort of breach of statutory duty or that of negligence. The three claimants require consideration of different aspects of the topic of psychiatric damage. In addition Selene might have a differently structured claim against Orbital Films Ltd based on vicarious liability for the possible negligence of Ariadne.

Law cases, reports and other references the Examiners would expect you to use An illustrative case on breach of statutory duty. Alcock v Chief Constable of South Yorkshire Police and subsequent cases on psychiatric damage including cases such as AB v Tameside.


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Common errors The most common error was in relation to Selene. She is a secondary victim if the tortfeasor being considered is Mars, but not if the tortfeasor being considered is Ariadne. Many candidates amalgamated the two claims. Another common error lay in the definition of secondary victim. Alcock provides that certain close relatives are presumed to be in a relationship of love and affection. It does not say that they are the only people who can sue as secondary victims. Others can do so if they can prove that they did in fact have a sufficient relationship of love and affection.

A good answer to this question would… have briefly explored breach of statutory duty. Was the duty imposed only for the protection of employees in the work place, thereby excluding Castor and Pollux from its protection? If so, Mars is quite likely to be held negligent. Castor would be treated as a primary victim: although he was not in fact physically injured, he must have feared for his own safety as the structure was falling towards him. Pollux was too far away to be in danger himself and could only be a secondary victim. He would seem to satisfy the requirements of proximity and perception by his own senses and might be able to prove that he had the necessary close relationship to Castor although he was not a relative. Selene is not strictly within the Alcock categories but might well show a close relationship with her grandfather: her more serious problem as a secondary victim is that she does not appear to have observed the accident or even its aftermath. As an alternative she might try to argue that Ariadne gave the information in an unnecessarily insensitive way that caused her distress. There has been some discussion of this in case law and in the literature but there is no conclusive decision.

Poor answers to this question… committed some of the errors identified above. They also often spent time discussing the film company’s liability as occupiers, but it is impossible to argue that the accident was the result even in the loosest sense of a danger arising from the state of the premises. Also some answers spent too long on vicarious liability. Since Mars is stated to be an employee and Ariadne is implicitly an employee and they are certainly in the course of employment, there is no need for more than a single sentence saying so.

Question 4

Frances is aged 80 and increasingly frail. Her daughter, Gwen, got in touch with the local council. At a case conference the social services department decided that Frances could continue to live at home but provided her with an alarm to wear round her neck and pull to summon help if needed. Frances however sometimes got confused and pulled the alarm by mistake.

One day Hettie, who was on duty in the social services office, saw that Frances’s alarm had been activated. She thought that it was probably another false alarm and ignored it. An hour later it sounded again and Hettie asked Inge, an unqualified care assistant, to go round to Frances’s flat. Shortly afterwards Gwen telephoned and spoke to Hettie, telling her that she (Gwen) could not make contact with Frances. Hettie told her not to worry as the situation was now under control.

In the meantime, Inge misunderstood her instructions and went to the wrong part of town. She phoned for further advice and eventually reached Frances after two hours. She found that Frances’s central heating had broken down and she was suffering from hypothermia. She was taken to hospital but died the next day.

Advise as to any claims by Frances’s estate.

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General remarks This question was answered by only a small number of candidates and there were very few good answers. It was primarily concerned with the liability of public authorities in the exercise of their public law responsibilities. The relevant cases are mostly drawn from responsibilities towards vulnerable children, but they can be applied by analogy to the vulnerable elderly.

Law cases, reports and other references the Examiners would expect you to use X v Bedfordshire, D v East Berkshire Community NHS Trust and similar cases on responsibilities of social workers, etc. Barrett v Enfield LBC and other cases on assumption of responsibility. Cases such as Kent v Griffiths on failures by emergency services to respond to calls.

A good answer to this question would… have devoted considerable time to the special position of the local council. To what extent can they be liable in respect of their original decision that Frances could be looked after in her own home and did not need to be given sheltered accommodation? (Cf cases leaving children with abusive carers rather than taking them into the care of the local council.) Alternatively, could Frances’ estate argue that there was a breach of her rights under the European Convention on Human Rights (Article 3) and, if so, what remedy might they get? A substantial proportion of the answer should have dealt with this. Even if they were not liable for the initial decision, they had assumed responsibility for her. Had they then broken their duty towards her by any of these: (i) failing to respond to the first alarm, (ii) sending an unqualified person, (iii) giving that person unclear instructions, (iv) brushing Gwen’s concerns aside? Alternatively, was Inge’s failure to reach Frances negligent? There are similarities to Kent v Griffiths but in the problem there had never been an express undertaking that assistance was on its way.

Poor answers to this question… wholly ignored or gave only brief reference to the special problems in relation to public authorities such as local councils.

Question 5

Algy took his car to the Do-U-Down Garage for its annual service in March 2013. Until September 2012 he had worked as a sales assistant at the garage but had left when he had a chance to go touring with a rock group. There is a notice in the reception area reading: ‘Customers must remain in the reception area. Cars will be brought to the forecourt by one of our mechanics.’ It is possible to access the workshop from a door behind the reception desk. On that door there is a sign saying: ‘Garage staff only. No unauthorised admission.’ When Algy returned to collect his car, he went behind the desk, chatted to Brenda, the receptionist, and went through the door into the workshop. His car had been raised on a mechanical ramp and a mechanic, Chris, was working on it. Chris called Algy over and pointed out problems on the underside of the car that would soon need attention. At that point the ramp collapsed and both Algy’s legs were severed. Algy’s girlfriend, Delia, was waiting in the reception area. She heard Algy’s screams and ran into the workshop. She slipped on a patch of oil on the floor and fell, causing herself serious head injuries.


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An examination has now shown that a concealed part of the ramp had become corroded. Do-u-Down Garage had the ramp inspected annually by Goeasy Ltd, who reported no faults when it carried out an examination in December 2012. Goeasy Ltd is now out of business.

Advise Algy and Delia as to any claims against Do-U-Down Garage.

General remarks This problem concerns the liability of occupiers. It is necessary to consider first whether Algy is or is not a lawful visitor and then to consider the relevant statutory provisions on each assumption. Then the same process has to be carried out with Delia.

Common errors A common mistake was to lose sight of which of the two Acts the candidate was discussing at any one time. For example, to discuss a provision of the 1957 Act when they were considering Algy’s position if he were a trespasser.

Law cases, reports and other references the Examiners would expect you to use Occupiers’ Liability Acts 1957 and 1984 (with particular reference to s.2(4)(b) of the former and s.1(3) of the latter. Illustrative cases in relation to the Acts and to the position of rescuers.

A good answer to this question would… have carefully considered the position of Algy. On the face of it he is a trespasser when he enters the workshop despite the notice. But he can probably argue that he was a lawful visitor on the basis (a) (doubtful) that he was an ex-employee and therefore used to entering the workshop or (b) that his entry was in fact authorised by Brenda or, more plausibly, by Chris. If so, then the elements of the 1957 Act must be considered, particularly the argument that, if the state of the ramp was a danger, the occupiers had discharged their duty by employing independent contractors, Goeasy Ltd. If he were a trespasser, his presence was certainly known but did the occupiers know or have means of knowledge of the danger and had they taken reasonable care of his safety. The danger that came to pass for Delia was not the ramp, but the patch of oil. Is a patch of oil on the floor of a garage workshop a danger that suggests negligence? Was Delia as a rescuer of her boyfriend a lawful visitor?

Poor answers to this question… demonstrated a number of problems. One is mentioned under common mistakes. Another was to spend a lot of time discussing possible negligence of Chris – but how was he negligent in inviting Algy to inspect his car? He had presumably no knowledge of any danger since he had been working under it. Another was a muddle about the significance of the notice (see the extract and commentary below).

Student extract Furthermore s 2(4) (a) deals with the issue of warning (Roles v Nathan). Although warnings were written there on notice board but the question arise that can such warnings be treated as sufficient to exclude liability. But point is warnings are never meant to exclude liability but to limit the liability. Furthermore warning was for not entering into premises which was most probably impliedly granted by the staff. Therefore Du-u-Down whose employee is staff may be held vicariously liable for the negligence of employees.

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Comment on extract This is a very weak answer. First, it is not easy to follow the argument. Second, it seems to confuse three things in relation to the notices. The notice here has only one purpose, namely to make it clear that entry is forbidden, and that anyone who enters the workshop is a trespasser. It does not purport to give any warning of any danger at all, let alone the relevant danger – the state of the ramp. It does not attempt to exclude liability at all, but merely to ensure that an unauthorised entrant’s rights are those arising under the 1984 rather than the 1957 Act. In any case, although as stated a warning does not attempt to exclude liability, it does not limit liability either. On the contrary it attempts to ensure performance of the occupier’s duty by enabling the visitor to avoid the danger and be reasonably safe. (This confusion about the significance of the notice was present in a great many answers, which referred to the notice as a warning notice: see the discussion in the subject guide at Section 6.2.b and associated feedback.)

Question 6

Explain what is meant by ‘pure economic loss’ and critically examine the circumstances in which English law allows recovery for negligently inflicted pure economic loss.

General remarks This requires a brief definition of pure economic loss (with the focus on ‘pure’) as opposed to consequential loss. Candidates should then focus on situations where it may be recoverable, including negligent mis-statements, the extended Hedley Byrne principle, the notion of assumption of responsibility and its relation to the Caparo v Dickman principles. They should include some illustrative examples. Ideally they should also include some critical commentary as to whether the law as stated is coherent.

Law cases, reports and other references the Examiners would expect you to use The principal cases would be Spartan Steel v Martin, Hedley Byrne v Heller, White v Jones, Henderson v Merrett Syndicates, Commissioners of Customs and Excise v Barclays Bank.

Common errors A common error was to ignore the first part of the question or to give a rather garbled account. Pure economic loss is economic loss that does not arise from physical damage to the claimant’s own person or property. It arises either without physical damage to person or property at all or from damage to the person or property of someone other than the claimant.

Question 7

Phoebe is one of ten general medical practitioners who practise at a surgery in Bodkin Street in Slumtown. A number of relatives contacted Rachel, the medical correspondent of the local newspaper, the Slumtown Gazette, with concerns about the deaths of patients at the surgery. Rachel investigated the matter. She did not directly contact the practice, but did speak to the local National Health Service trust. A spokeswoman for the trust told her that they had no particular reason to be suspicious of the quality of care offered by the Bodkin Street practice. Rachel wrote an article published in the Slumtown Gazette in which she said that there appeared to be shortcomings in the care offered at Bodkin and that the NHS Trust had not been able to offer reassurance. The Slumtown Gazette is one of a syndicate of local newspapers and a version of Rachel’s article appears in some other local newspapers.


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Shane was convinced that his mother had died as the result of the treatment she had received at the practice. She had left Phoebe a small legacy in her will. He had a number of leaflets printed reading: ‘Bodkin Street Surgery. If you want the real “Bodkin” treatment, go to Bodkin Street and you will never look back.’ [Dr Bodkin Adams was a doctor who was acquitted in 1957 of the murder of a patient. A number of patients had died and had left legacies to him.] He left a number of these leaflets among other material on a display desk at the Slumtown Citizens’ Advice Bureau. The display desk is checked every three weeks. When Shane’s leaflets were found, they were removed. It is not known how long they were there or whether anyone had read them.

Advise Phoebe as to any claims in defamation.

General remarks Candidates were advised beforehand to answer on the assumption either that the Defamation Act 2013 was in force or that it was not in force. Most preferred to answer on the latter basis, but there were a few excellent answers on the basis of the 2013 Act that showed a good understanding and included references to commentaries on the Act about how it might be interpreted. In any case a number of issues raised by the problem would be answered in the same way whether the Act was in force or not.

Law cases, reports and other references the Examiners would expect you to use Defamation Act 2013 (if relied on), Defamation Act 1996 s.1. Knupfer v London Express Newspaper Co, Reynolds v Times Newspapers and subsequent cases. Byrne v Deane.

Common errors The commonest error was to consider an action by Dr Bodkin Adams. The instructions clearly said to advise Phoebe and nobody else. (Dr Bodkin Adams in fact died in 1983 at the age of 84 and could not sue. His case R v Adams is reported at [1957] Crim LR 365. Candidates were of course not expected to remember that.)

A good answer to this question would… have concentrated in relation to the first claim on reference to the claimant (group libel) and on available defences, particularly fair comment or honest opinion and Reynolds privilege or their replacements under the 2013 Act. The observation about shortcomings appears at first sight to be a statement of fact but, if Rachel had referred in her article to statistics about deaths, it could be treated as a comment on those facts. See the Student extract below on the other defences. An excellent answer might consider whether publishers of the other local newspapers could also rely on the Reynolds (or statutory) defence. In the second claim the issue of group libel arises again (but Phoebe might be more easily identified here because she had received a legacy from a deceased patient), but a greater problem is whether the words are defamatory. The essence is captured very neatly in the Student extract below. Would it be necessary to prove that readers of the leaflet knew about Dr Bodkin Adams already or is it enough that readers could easily identify the reference through the internet? Also the words are ambiguous: do they mean that you will never look back because you will be dead or because you will never be ill again? The liability of the CAB as publishers must also be explored. What steps should they take to check on and if necessary remove literature that is put on their display desk by outsiders?

Poor answers to this question… The commonest failing was to concentrate only on the liability of Rachel and of Shane. This was not in itself wrong but led candidates to ignore certain issues. In

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practice Phoebe would want to sue the newspapers and the CAB as being more likely to have resources to meet the claims. Both the Slumtown Gazette and other local newspapers are publishers of her article: the CAB likewise could be publishers (see Byrne v Deane) but might have a defence. Other poor answers spent too much time on matters that could not be in dispute (e.g. whether Rachel’s article was defamatory and whether it was published).

Student extract This candidate chose to write on the assumption that the 2013 Act was in force at the time. The answer stated in respect of the claim against Rachel:

R’s most powerful defence lies in s4 DA 2013 – responsible publication on a matter of public interest – replacing the common law Reynolds defence. S 4(1) states that it is a defence if R reasonably believes that the statement published is a matter of public interest. Public interest is not defined in DA 2013 to allow judicial flexibility. Insight can be drawn from London Artists v Littler whereby Lord Denning said that such a matter was one which the public would have a legitimate interest to know. It is submitted that the quality of medical service should satisfy this requirement.

The candidate then refers to something which they had read in academic discussion that s.4 might be easier to satisfy than Reynolds, discusses s.4(2) (comparing Lord Nicholls in Reynolds) and discusses what the relevant circumstances might be. The same candidate in dealing with the claim arising out of the leaflet wrote:

S’s leaflet is an innuendo as per Cassidy v Daily Mirror in the sense that people with background knowledge would see the ‘sting’ in the statement. S was suggesting that, like Dr Bodkin, P had murderous tendency on her patients for legacies.

Comment on extract These are very clearly expressed sections from an overall first class answer. The first quotation is a very good analysis of how s.4 might be used by the courts and how it might compare to the previous common law. It also showed some familiarity with public discussion of the new Act. The second quotation identified with great clarity the issue posed by the leaflet, something which many candidates found very difficult to deal with.

Question 8

Warhorse plc manufactures defence equipment. In order to meet large orders for weapons from overseas countries (for which it has export licences) it has recently had to operate its production lines all through the night at its factory. This is close to a housing estate on the outskirts of Paxtown. One of the houses is occupied by Felicity and her autistic teenage son, Gus. Gus is very distressed by the lights and noise from the factory and is hardly able to sleep. Felicity is unable to work because she cares for Gus, and has enrolled for an online distance learning degree programme. Warhorse’s equipment frequently interferes with the reception and transmission from her computer.

A group of pacifist protestors has occupied an empty council property nearby. The council is sympathetic to their objectives and is taking no action to evict them: indeed it has allowed them to earn some money by installing equipment to recycle old paper. They receive more paper than they are able to recycle and a huge quantity of paper is stacked on the property. One very windy night a large quantity of paper blew away and blocked the drain in Hilda’s nearby house. The house was badly flooded.


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Discuss any claims in nuisance or under the rule in Rylands v Fletcher.

General remarks The first claim is primarily concerned with private nuisance with particular reference to entitlement to sue, special sensitivity and possible relevance of a public interest, and with the appropriate remedy. Some reference may also be made to public nuisance. The second claim might give rise to an action in Rylands v Fletcher and perhaps also in private nuisance. The possible liability of the council which has tolerated the protestors’ presence on its land and has provided the paper for recycling must also be considered.

Law cases, reports and other references the Examiners would expect you to use Illustrative cases on private nuisance particularly the Canary Wharf case and other cases discussing entitlement to sue and the ECHR. Cases on liability of landlords in private nuisance or in Rylands v Fletcher.

Common errors Most of these were errors of omission. First, although most candidates considered whether Felicity had a sufficient interest in property, they did not consider the trickier question of Gus’s possible claim. Second, most candidates failed to consider what Felicity might want by way of remedy. In particular, what about an injunction to restrict the period for which, and the time of day at which, the company carried out its work? Finally there was some confusion about forseeability in relation to Rylands. It seems to be the law that there does not have to be foresight of the escape, but that only foreseeable damage is recoverable.

A good answer to this question would… have concentrated on issues mentioned in the introduction. Perhaps the most difficult aspect was the rights of the child and the possible impact of the Human Rights Act 1998. Some answers dealt with this very well, referring, for example, to Dobson v Thames Water Utilities and McKenna v British Aluminium. A relevant consideration is that if Felicity can get an injunction (e.g. restricting overnight operations) that outcome will benefit Gus without his having to have a separate entitlement to sue.

Poor answers to this question… tended to give an overall summary of the whole of private nuisance rather than concentrating on aspects relevant to the particular problem.

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