LEVEL 3 - UNIT 5 – LAW OF TORT
SUGGESTED ANSWERS - JANUARY 2014
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2014 examinations. The suggested answers do not for all questions
set out all the points which students may have included in their responses to the
questions. Students will have received credit, where applicable, for other points
not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
1.
A tort is a civil wrong.
SECTION A
2(a) Reasonable foreseeability means that a reasonable person in the
defendant’s position should reasonably have foreseen that the claimant
might be injured.
(b) Any relevant example could have been given. For example, the
manufacturer of ginger beer should have foreseen that the drink might have
been consumed by someone who had not actually bought the drink.
(Donoghue v Stevenson (1932)).
3(a) A secondary victim someone who is not directly involved in an accident but
who suffers as a result of seeing or hearing what happens to others.
(b) Any two of the four tests could have been both identified and explained. The
four tests are:
i.
Close relationship of love and affection;
Explanation e.g: rebuttable presumption between spouses or
parent/child.
ii. Physical proximity;
Explanation e.g: must be at the scene of the accident or its aftermath.
iii. Must see or hear the event or its aftermath with own senses;
Explanation e.g: not sufficient to be told about it/see it on TV.
iv. There must be sudden shock;
Explanation e.g: the result of a traumatic experience or event not slow
realisation.
4.
An act likely to cause harm may be justified if Defendant is engaged in a
socially desirable objective. A relevant case could be: Watt v Herts CC
(1954). Alternatively, reference could have been made to the
Compensation Act 2006 and the contents of section 1.
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5.
Either of the two tests for establishing causation of fact could be identified
and explained. The two tests are the ‘but for’ test as in Barnett v Chelsea &
Kensington HMC (1969) and the ‘material increase in risk test’ as in McGhee
v NCB (1972). A suitable explanation of the former would be that the
claimant would not have suffered loss but for the defendant’s negligence. A
suitable explanation of the latter would be that the defendant has made a
material contribution to the risk that the claimant would suffer harm.
6.
When establishing the remoteness of harm test for causation in law,
reasonable foreseeability requires the type of damage to be a foreseeable
result of the breach of duty as in The Wagon Mound (No.1) (1961).
7(a) Vicarious liability is the liability imposed on one person for the wrongful acts
of another.
(b) To establish an employer’s liability for the wrongful acts of an employee it
must be established that a tort has been committed, that an employeremployee relationship exists and that the employee was acting in course of
employment. (Any two of these three points would have been credited).
8.
Any relevant example of a situation where consent is established could have
been given such as the fact that spectators at sporting events are deemed
to consent to normal risks as in Murray v Haringay Arena (1951).
9.
Any example of general damages could have been given such as pain and
suffering, loss of amenity, mental distress, future loss of earnings or the
cost of future care.
SECTION B
Scenario 1 Questions
1(a) A good answer would have identified the need for both causation in fact and
causation in law.
With regard to factual causation, it would have continued by identifying and
explaining the ‘but for’ test. A suitable explanation of the test would have
been that the damage would not have occurred but for the defendant’s
negligence as in Barnett v Chelsea & Kensington HMC (1969). Next it would
have identified the ‘material increase in risk’ test and explained that this
requires the Defendant’s act to have made a ‘material contribution’ to the
risk that the Claimant would suffer harm as in McGhee v NCB (1973).
With regard to legal causation, a good answer would then have identified
the ‘remoteness’ test and explained that a reasonable person must have
foreseen the type of damage when he acted negligently. A relevant case
would have been The Wagon Mound (No.1) (1961).
(b) This part of the question required application of the law to the scenario and
a good answer would first have identified that there are multiple causes of
harm here. It would have suggested therefore that the appropriate test for
factual causation is the ‘material increase in harm test’. It would than have
applied this test:
 April has made a material contribution to the risk that Chris would suffer
harm;
 Damian has also made such a material contribution.
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The answer would then have applied the ‘remoteness’ test in order to
establish legal causation:
 Any reasonable person should have been able to foresee some physical
injury in such a situation.
The ‘thin-skull’ rule should then have been identified and explained; a
suitable explanation being that one must take one’s victims as one finds
them.
The ‘thin-skull’ rule should then have been applied:
 Chris has brittle bones;
 April/Damian will therefore be liable for full extent of Chris’ fracture.
A relevant case here would be Smith v Leech Brain (1962).
2(a) A good answer here would have identified the likely defence of contributory
negligence in accordance with the Law Reform (Contributory
Negligence) Act 1945 and explained that the defendant is required to
prove that that the claimant acted carelessly by, for example, being partly
to blame for the accident as in Fitzgerald v Lane (1989).
The effect of the defence is that damages will be assessed in full and then
reduced.
(b) Application here could be that:
 Chris stepping into road without looking was acting carelessly;
 A percentage reduction in damages will be applied to reflect this.
3(a) A good answer would have identified that limitation periods are imposed by
the Limitation Act 1980 and that with regard to personal injury cases the
relevant period is 3 years from:
 from date of injury; or
 from the date of knowledge.
Any action must therefore be commenced within 3 years of 24.2.2011.
(b) Failure to bring an action by this date would mean that the claim becomes
statute-barred.
4.
A good answer would have identified a possible break in the chain of
causation and then applied the law to the scenario. Application here might
be that Dr Ed’s failure to notice Baljit’s fracture may amount to a new
intervening act. If so, April would not be liable for injuries after the new
intervening act, namely April’s brain damage caused by the hospital’s failure
to treat her. However, as negligent medical treatment does not generally
remove liability from the original tortfeasor April’s liability is probably not
removed although it may be reduced. A relevant case might be Webb v
Barclays Bank plc & Portsmouth Hospitals NHS Trust (2001).
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Scenario 2 Questions
1(a) A good answer would have identified and explained both the ‘neighbour
test’ from the case of Donoghue v Stevenson (1932) and the ‘three-stage
test’ from the case of Caparo v Dickman (1990). An explanation of the
former could have made use of Lord Atkin’s dictum in the case of Donoghue
v Stevenson.
A full explanation of the ‘three-stage test’ should have explained each of the
stages as follows:
 For reasonable foreseeability, it could, for example, be explained that a
reasonable person should have foreseen that Georgina may have been
harmed and that this is viewed objectively;
 For proximity, it could be explained that this refers to the relationship
between the parties;
 By way of explanation of just & reasonableness it could be explained that
there must be no public policy reason against the imposition of a duty of
care.
As well as Donoghue v Stevenson and Caparo v Dickman, relevant cases
could have included Smith v Littlewoods (1987), Topp v London Country
Bus (1993) and L v Reading BC (2007).
(b) This part of the answer required application of both the ‘neighbour test’ and
each part of the ‘three-stage test’ to the facts of the scenario. Thus, for
example:
 Fatima should have taken reasonable care to avoid injury to Georgina
whom she should have had in contemplation etc;
 A reasonable person in Fatima’s position should have foreseen that
Georgina may have been harmed;
 A relationship exists between Fatima as representative of museum and
Georgina as a visitor; and
 There is no public policy reason here why liability should not be imposed.
In conclusion, Fatima owed duty of care to Georgina.
2.
This question required identification of the ‘reasonable man’ test referred to
in Blyth v Birmingham Waterworks (1856) and an explanation and
application of it. The explanation could have been by reference to Baron
Alderson’s dictum in that case. Application of the test could have been for
example that a reasonable person in Fatima’s position would have foreseen
the risk and a suitable conclusion would have been that Fatima has
breached her duty of care.
3(a) This part of the question required both identification and explanation of
each of the following tests:
 the control test an explanation of which could be that the court considers
the degree of control exercised by the ‘employer’ over the ‘employee’ – a
relevant case could be Yewens v Noakes (1880);
 the organisation test an explanation of which could be that it has to be
considered whether the ‘employee’ is an integral “part of the
organisation” - a relevant case could be Cassidy v MoH (1951);
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 the multiple test which could be explained by reference to the court
considering the economic reality of the situation – a relevant case could
be Ready Mixed Concrete (SE) Ltd v MoP (1968).
(b) In this part of the question, application of the law to the scenario was
required. This could have been as follows:
 the control test - Fatima is under day to day control of museum;
 the organisation test - Fatima appears to be an integral part of the
museum organisation;
 the multiple test:


factors suggesting self-employment could be the terms of the
contract, Fatima’s freedom to accept or reject work and freedom to
choose holidays;
factors suggesting employed status could be that Fatima is
supplied with uniform and has to obey her manager’s orders.
Mention of mutuality of obligations could have been made and reference to
a case such as Carmichael v National Power (1999). A likely conclusion here
would be that Fatima is an employee, although a reasoned argument to the
contrary would also have been given credit.
4(a) A good answer would have identified that a claimant would need to show:
 a wrongful act authorised by employer; or
 a lawful act authorised by employer but carried out in a wrongful or
unauthorised way.
A relevant case could be Hilton v Thomas Burton (Rhodes) Ltd (1961).
Also, a claimant could show that the act was so closely connected to the
defendant’s employment that vicarious liability ought to exist as in the case
of Lister v Hesley Hall (2001).
(b) This part of the question required application of the law to the scenario:
 Fatima is clearly acting in the course of her employment;
 Closing the gate on Georgina’s finger is a lawful act carried out in a
wrongful way.
An appropriate conclusion would be:
 The museum will be liable for Fatima’s negligent act;
 Fatima will also remain personally liable.
Scenario 3 Questions
1(a) A good answer would have explained each of the three elements of the tort
of Negligence, namely:
(i)
duty of care:
 either an established relationship; or
 the ‘neighbour test’ or ‘three-stage test’
A relevant case could be either Donoghue v Stevenson (1932) or
Caparo v Dickman (1990).
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(ii)
a breach of a duty of care. This could have been explained by
reference, for example, to the reasonable man test.
A relevant case could be
(iii) causation both in fact
explained by reference
increase in risk test’ and
Blyth v Birmingham Waterworks Co (1856).
and in law. The former could have been
to either the ‘but for test’ or the material
the latter by reference to remoteness.
Relevant case cases could be Barnett v Chelsea & Kensington HMC
(1969) and The Wagon Mound (No.1) (1960).
(b) This part of the question required application of the relevant law to the
facts. In:
(i)
Application of neighbour test:
 Katrina is closely & directly affected by Jamil spilling the hot water;
 Jamil should have had her in contemplation when pouring the water.
Regarding the three-stage test:
Application of foreseeability:
 a reasonable person in Jamil’s place would reasonably have foreseen
the risk of injury or damage.
Application of proximity:
 sufficiently close relationship – Katrina is a guest.
Application of just and reasonableness:
 probably no policy reason why liability should not be imposed,
Reference to Compensation Act 2006.
Application of s.1:
 court may have regard to whether a requirement to take steps to
meet a particular standard of care might prevent a desirable activity
from being undertaken.
A relevant conclusion should then have been reached.
(ii)
Application of reasonable man test:
 test is objective;
 would a reasonable person have reasonably foreseen the harm as a
consequence of Katrina’s act?
Identification of socially desirable objective as a relevant factor
Application:
 Discussion of whether a charitable event is a socially desirable
objective
A relevant case could be Watt v Herts CC (1954).
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A conclusion should also have been reached as to whether the duty
has been breached. Any reasoned conclusion would have gained
credit.
(iii) Identification that the “but for” test is the appropriate test here.
Explanation of “but for” test:
E.g: would claimant have been injured but for defendant’s action.
Application of “but for” test:
E.g: Katrina would not have been injured but for Jamil spilling the
water.
Identification “remoteness” test.
Explanation of “remoteness” test:
E.g: Damages will only be given for the type of injury which is a
foreseeable result of the breach of duty.
Application of “remoteness” test:
E.g: Burns are of a type of injury Jamil should have been able to
foresee.
Identification of “thin-skull” rule’
Explanation of “thin skull” rule:
E.g: Defendant must take victim as he finds him.
Application of “thin skull” rule:
E.g: Jamil must accept Katrina’s predisposition to cancer.
Conclusion: Jamil is liable for Katrina’s death.
A relevant case could be Smith v Leech Brain (1962).
2(a) A good answer would have explained that a defendant owes a duty of care
to a rescuer provided a reasonable person in the rescuer’s situation would
feel obliged to assist.
Ian has probably acted as a reasonable person in going to Manny’s aid.
Public policy dictates that a rescuer deserves favourable consideration. A
suitable conclusion could be that Ian can claim for physical injuries as duty
of care owed.
(b) It would have continued to explain that Owen is a secondary victim who
does not satisfy the Alcock criteria because, for example, there is no close
relationship of love and affection. A suitable conclusion would be that Owen
could not claim for psychological harm.
3(a) General damages are those which are not capable of precise calculation
such as damages for pain and suffering – here, the burns, loss of amenity
or future loss of earnings.
(b) Special damages are quantifiable as a consequence of the tort and before
trial. Here, damages for the £8,000 lost profits would be special damages.
Other special damages could be the cost of hospital care or of replacement
of fire damaged clothing.
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