Examiners report 2013

Examiners report 2013

LA3001 Law of tort Zone B
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
Rob and Sohal, professional footballers, were due to play an away match for
their club against Toytown Athletic at their stadium. On the morning of the
match there was exceptionally heavy rain. Theo, the referee appointed to take
charge of their match, inspected the pitch and decided that, although there
was some water lying on the pitch, the match should go ahead. Some fixtures
in the vicinity were postponed, but referees allowed some others to go ahead.
At kick off Rob took his place on the pitch, but Sohal was a reserve and
waited on the bench. Half an hour into the match, Rob ran to intercept a pass.
His boot became stuck in a muddy part of the pitch. He fell to the ground
writhing with agonising pain in his ankle and knee. Sohal immediately took a
photograph on his mobile and sent it to Ursula with a text message reading,
Laugh out loud, pet! Rob diving! Ursula was an ex-girlfriend of Sohal but
had been dating Rob for six months. She knew from the photograph that Rob
was in extreme pain.
Robs injuries proved to be very serious and he is no longer able to play
professional football. Ursula and Rob split up and she has been diagnosed as
suffering from a long-term psychological illness.
Advise Rob and Ursula. It is agreed by all parties that the pitch had been
properly maintained prior to the match and that no action lies against
Toytown Athletic. Advise them as to any other causes of action they may
have.

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General remarks
Robs claim would be against Theo (and Theos employer vicariously if Theo is
employed). In Vowles v Evans (see Section 3.3.2 of the subject guide) the Court of
Appeal held that a rugby referee owed a duty of care to players. Although that case
concerned rugby (more physically dangerous than football) and the actions of the
referee during the course of play rather than before the match, the case will surely
be followed. 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 main
interest is in the standard of care (see comments on the Student extract below). If
there is a breach of duty, issues of causation and remoteness present no problem
and need be discussed only briefly. Ursulas claim for psychiatric damage can be
argued in two ways. First she could argue that she is a secondary victim of Theos
negligence. This involves a consideration of the familiar criteria for secondary
victims explained in Alcock v Chief Constable of South Yorkshire Police and
developed in other cases. Both the question of her relationship with Rob and her
proximity at the time of his injury called for discussion. Very few candidates
suggested the interesting possibility that the law might have to be reexamined in the
light of modern instantaneous methods of communication like mobile phones not
known when the current rules were laid down. Second, she could argue that she
has a claim against Sohal either on the basis of the rule in Wilkinson v Downton
(but some excellent answers pointed out that this case is weaker whatever Sohals
motivation because the statement in Wilkinson was a lie but Sohal tells the truth) or
on the basis that Sohal was negligent in the way he told Ursula of Sohals injury
(consider e.g. AB v Tameside).
Law cases, reports and other references the Examiners would expect you to
use
Vowles v Evans. Illustrative cases on the standard of care expected from
professionals. Alcock v Chief Constable of South Yorkshire Police and subsequent
cases on psychiatric damage including those such as AB v Tameside dealing with
negligent giving of information. Wilkinson v Downton.
Common errors
(i) The question clearly stated that no action lay against Toytown Athletic and that
candidates should consider other causes of action. Nevertheless, a surprising
number of candidates embarked on a discussion of Toytowns possible liability as
occupiers. It is impossible to receive any marks for issues that the Examiners have
expressly said are not to be discussed. (ii) A number of answers muddled Ursulas
two claims. She cannot be a secondary victim in a claim against Sohal. She is of
course not a primary victim in the Page v Smith sense (not being herself in danger)
and she can succeed only if there are also other kinds of primary victim. (iii) A
number of candidates said that Ursula could not sue because she was not within
the class of those who have a tie of love and affection under Alcock. This is not
correct. In the Alcock categories a tie of love and affection is presumed: but it is
always possible for those who do not fall into those categories to prove that they do
in fact have love and affection for the primary victim.
Student extract
In a discussion of breach of duty by Theo:
court will take into account age of D, physical and mental disability. And also
(1) severity of injury (2) cost of prevention and (3) social utility. However here
the question is whether a reasonable person recommend to hold a match on
wet ground or after heavy rain. If reasonable person would do so like Theo

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then Theo is not in breach. If not, he is. However it is a matter for the courts
to decide.
Comment on extract
This is an answer at low pass standard. There are several faults and respects in
which it could be improved. (a) Theo is not extremely old or a child or disabled.
What is the point of mentioning this? (b) The next three points are very important
but need to be developed and applied and not just stated. This is important to
achieve a good mark. Injuries may occur on a wet pitch but are not likely to be as
serious as they are in rugby (Mr Vowles became a tetraplegic) or as they are in
football in extremely cold weather when the pitch may become frozen solid. On the
other hand a number of economic and social factors could be mentioned here (see
Latimer v AEC and subject guide Section 3.3.3). Postponing a match may be costly
for the clubs and disruptive to the league: supporters of the away team may have
travelled far at substantial cost and expect to see a match: there are consequences
for the considerable betting industry that depends on professional football. (c) The
reference should be to what a reasonable referee rather than a reasonable person
would have done. (d) The statement that it is for the courts to decide is rarely
helpful. The job of the candidate (as of the lawyer) is to advise the client what the
court is likely to decide and what arguments may be made to persuade the court.
The only respect in which the candidate cannot reach a concluded view is that the
full facts and supporting evidence cannot be set out in an examination question.
(e) Some other matters could have been mentioned. An important fact in the
Vowles case was that the injury occurred in the course of play when a referee may
have to make a decision in the heat of the moment: here the decision could be
taken at greater leisure. Finally, the question of what happened in other matches is
not very useful as evidence because the state of the pitches might have been
different. It might possibly have been significant if it could be shown that every
match within 50 miles of Toytown was cancelled because of the extreme weather.
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.

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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
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
Queenie and Ross are both members of the board of a charity. Ross is a
solicitor who advises the board on relevant legal matters. Queenie was
chatting to him over coffee after a meeting and said, I had no idea you were a
lawyer. We had a funny experience a couple of years ago. Our daughter Petal
had a holiday job with a garden centre. She had to unpack some paving
stones that had been supplied to the centre. One of them broke apart in her
hands as she took it out and she was badly cut. We thought it was OK at the
time and she was patched up, but it soon turned out she had a rare bone
condition she didnt know about and now her bones have become
permanently weakened and cause her a bit of pain. Weve often wondered if
she might have had a claim. Ross replied, Well, Im not a personal injuries
lawyer, but it doesnt seem very likely. She would have to prove negligence
and that looks difficult, doesnt it. And her boss wouldnt have known about
her bone condition and so there wasnt much he could have done about it.
Another year has elapsed and it is too late to sue the garden centre. Petal has
started a law degree and now wonders if she could sue Ross. Advise her.
General remarks
This was, as most answers identified, an extended question on liability for negligent
mis-statements. It called for analysis of the following: (i) Was the relationship
between Queenie and Ross one that imposed a duty to take care in answering
Queenies question? On the one hand Ross was asked his opinion because he was
a lawyer and attending the meeting in that capacity: on the other the conversation
took place in an informal semi-social setting. (ii) If the answer to (i) was Yes, is

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Petal able to sue? Almost certainly she is because Ross knew that the advice was
about her claim and she was likely to be strongly influenced by her parents. (iii)
Was the advice negligent? Almost certainly yes. He should have referred to the
possibility of strict liability of the manufacturer under the Consumer Protection Act
1987 and of the manufacturer indirectly under the Employers Liability (Defective
Equipment) Act 1969. He also failed to consider the implications of the egg-shell
skull principle. He should have said, Very possibly, there are some statutes to be
considered but it depends on what she can prove and she should consult a lawyer
experienced in such matters. (iv) Did his negligence cause loss? Would Petal have
succeeded in getting compensation from the garden centre or the manufacturer if
she had been correctly advised?
Law cases, reports and other references the Examiners would expect you to
use
Hedley Byrne v Heller, Chaudry v Prabhakar, cases on liability to persons other
than intermediate advisee such as Gorham v BT, Consumer Protection Act 1987,
Employers Liability (Defective Equipment) Act 1969, some reference to case law on
employers common law duty of care.
Common errors
A remarkable number of answers looked only at whether there was a duty of care
and ignored questions of breach and causation. It was hard to know the explanation
for this lapse. Candidates generally do, in answering a negligence question, set out
the separate requirements of the tort and sometimes discuss individual aspects at
inappropriate length. The failure to discuss the question of whether there was a
breach here was a serious matter. A very much smaller number of answers made
the opposite error and discussed only the possible liability of the garden centre and
ignored the possible liability of Ross.
A good answer to this question would
have covered the four separate issues identified above. The most difficult aspect is
causation: a satisfactory answer would simply have mentioned that in principle the
advice has to cause her loss. An outstanding answer would have explored this a bit
more deeply. For instance, it could be argued that Petal would have to prove on a
balance of probabilities that she (advised by her parents) would have sought legal
advice (see McWilliams v Sir William Arrol), but would only have to prove that she
lost a chance that the defendants would perhaps settle her claim if action was
brought rather than having to prove on a balance of probabilities that she would
have got substantial damages.
Question 4
Joe and Ken are 14-year-old pupils at Dotheboys Community College. Joe is a
clever and adventurous child. Ken has learning difficulties: he admires Joe
and follows his lead. Joe discovered that one of the railings surrounding the
school grounds had become slightly loose and so he suggested to Ken that
they would be able to squeeze through and get into the school grounds after
the school had closed for the day and the buildings were locked. They did so.
There was no other access to the school grounds. Joe then noticed that one
of the windows was very slightly open. The boys managed to climb in and
found themselves in a chemistry lab. Ken saw some test tubes and poured
water into one of them. The test tubes had been left ready for an experiment
the following morning. There was a big explosion and Joe and Ken were hurt.
Laura, a paramedic, was one of the ambulance crew sent to the scene. Her
ambulance was not equipped with the special clothing that should be worn if
there was a danger of a chemical leak. However she decided that the situation

LA3001 Law of tort

was so serious that she should try to help the boys at once rather than wait
for the special clothing to arrive. She managed to treat the boys but was
herself badly burned as a result of contact with the chemical.
Advise Joe, Ken and Laura.
General remarks
This is primarily a question on occupiers liability. Joe and Ken would appear to be
unlawful visitors: although they are pupils at the school, they would not have
permission, express or implied, to squeeze through a gap in the fence. The
provisions of the Occupiers Liability Act 1984 must be considered. The problem
certainly seems to be a danger due to the state of the premises (i.e. the way that
the equipment is set out ready for the experiment). The main problem facing the
boys would be whether the occupier has knowledge or has reasonable grounds to
believe that [the boys] are in the vicinity of the danger ormay come into the
vicinity of the danger (s.1(3)(b)). If they can overcome this, then it should be
considered whether they are contributorily negligent having regard to their age and
(possibly) in Kens case his learning difficulties. Laura would appear to be a lawful
visitor having entered as a paramedic to give assistance to those injured. More
comments on Lauras claim appear under the following sections and the extract
from a script.
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(3)(b) of the
1957 Act and s.1(3)(b) of the 1984 Act and Ogwo v Taylor and Roles v Nathan.
Cases on liability to trespasers such as Ratcliffe v McConnell and later cases.
Mullin v Richards or other case on standard of care expected of children. Cases on
employers common law liability exemplified by Wilsons & Clyde Coal Co v English.
Poor answers to this question
tended to be unbalanced. First a number of answers spent a considerable amount
of time discussing the boys claim under the 1957 Act, arguing that as pupils the
boys were entitled to enter the school. This is extremely implausible (what was the
purpose for which they were invited or permitted to be there?) and in any case, if
they were lawful visitors, the occupiers had very clearly not taken care to see that
they were reasonably safe. On the other hand a large number of answers failed to
consider Lauras claim against the occupier of the premises and discussed only a
claim against her employer.
Student extract
The answer discussed Lauras claims against the occupier and referred to the 1957
Act (s.2(3)(b)) and Roles v Nathan. It then questioned whether chemical leaks were
within the expertise of a paramedic and continued,
Even if it is within the expertise of Laura and she should have to wait for
special clothing, the court would take into account the dilemma i.e. the
emergency of the situation as it is unclear whether the special clothing would
arrive and the situation was so serious that the emergency here outweighs
the reason for wearing the special clothing.
There is a reference to Jones v Boyce. The answer refers to the employers
common law duty of care and Wilsons and Clyde Coal Co v English. It continues,
It is unclear whether an ambulance must [always] be equipped with special
clothing or will supply one if there is a need to use it but it would take some
time to arrive.

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Comment on extract
This is a good solid answer that identifies succinctly the main issues, although it is
sometimes a little clumsy. It ignores, however, the possibility that s.2(3)(b) would
not apply because as in Ogwo v Taylor the danger on the premises was created by
the negligence of the occupier. It does make two important points ignored by most
candidates, (i) how the seriousness of the boys plight was to be balanced against
the risk of not waiting for the clothing and (ii) whether an ambulance always has to
go equipped with every piece of apparatus that might be needed in every possible
kind of danger.
Question 5
Frank took Ben, his eight-year-old son, and Bens school friend, Sam, on a
visit to the zoo. Sams mother knew Frank well and had agreed to the trip.
Sam felt sick and Frank took the boys back to his car, holding each boy by
the hand. Sams father Geoff, who is divorced, was walking across the car
park and spotted Frank opening his car door. He assumed that Frank was
abducting Sam. He shouted out, Leave him alone and, when Frank did not
react, he threw a brick which hit Frank on the back of the head. Frank
collapsed and was taken to the accident and emergency department of the
Hopeless Hospital. Irene, the nurse who first examined him, thought that his
condition was not very serious and asked him to wait in a cubicle until he
could be attended to. Because of a mix up, no member of staff realised that
Frank was in the cubicle. By the time he was found, he had become
unconscious and died. It is probable that, if he had been treated promptly at
the hospital, he would have survived although he might have had some
weakness in his left leg and arm.
Advise Franks estate.
General remarks
This question entailed two separate claims by Franks estate, that against Geoff and
that against the hospital as well as a discussion of the relationship between them
(i.e. who paid for what in particular claims resulting from his death).
Law cases, reports and other references the Examiners would expect you to
use
Cases illustrating the general principles of battery and certainly Ashley v Chief
Constable of Sussex Police. Cases on medical negligence such as Whitehouse v
Jordan and Bolitho v City and Hackney Health Authority. Cases on new and
intervening cause particularly those in the area of medical negligence such as
Webb v Barclays Bank and Robinson v Post Office.
Common errors
A large number of answers considered the claim against Geoff only in negligence,
and sometimes contained a great deal about whether there was a duty of care, was
it fair, just and reasonable and so on. This was all rather pointless: Geoff had clearly
thrown the rock deliberately: the main issue was whether he had a defence.
A good answer to this question would
have briefly considered the elements of battery and then considered whether Geoff
had a defence because, as he saw it, he was acting to protect his son. Careful
analysis would separate two questions. First, did the circumstances justify Geoff
acting at all? The main authority would be Ashley v Chief Constable of Sussex
Police, a decision of the House of Lords in 2008 cited in the Recent developments.
That was a case about self-defence rather than acting in defence of a third party,
but the principles would surely be the same. The House held that it was not
sufficient (as it would be if he was charged with a crime) for Geoff to show that he

LA3001 Law of tort

had an honest belief, he also had to show that his belief was a reasonable one.
Indeed some judges thought that the defendant should have to prove that there
really was in fact a danger, but did not decide the case on that basis because it had
not been argued by counsel. If, perhaps improbably, his belief was held to be
reasonable, Geoff would still have to show, secondly, that the force he used was
reasonable in the circumstances. Surprisingly almost no answers referred to the
Ashley case, although some relied on Poland v Parr, a case concerned with an
employee acting, as he saw it, in defence of his employers property.
As to the second claim, plainly Irene owes a duty of care and is in the course of her
employment. The main issue here that needs thought is whether she is in breach. A
surprising number of answers assumed that she must be negligent and that she
should obviously have called a doctor. But not all patients can be seen immediately
and it is the duty of the triage nurse to make a judgment as to whether a particular
patient has a priority or can wait until a doctor is free or indeed needs to see a
doctor at all. Only if Irenes decision was one that a reasonable nurse could not
have made could she be liable. (Incidentally the present target for NHS hospitals in
England is that patients should be seen within four hours and so judgments as to
priorities are important.) Alternatively, there is an argument that there was some
systemic negligence in the hospital in that Frank was allowed to languish unnoticed
in a cubicle. Then there is the question of whether any negligence by Irene (or the
hospital) breaks the chain of causation so that the hospital is liable for all the
subsequent damage. There is authority (e.g. Webb v Barclays Bank) that only
severe negligence will have this effect: this would be unfortunate here since as a
practical matter Geoff is unlikely to be able to pay substantial damages.
Poor answers to this question
ignored the claim in battery and the Ashley case and gave inadequate attention to
Irenes conduct. They also gave far too much attention to Baker v Willoughby and
Jobling v Associated Dairies. It has been pointed out in previous Examiners reports
that candidates frequently make inappropriate use of these cases. They are
concerned with two independent causes but Irenes (and the hospitals) action was
not independent: their duty was to take care to make Frank better. Look at it this
way: If the armed robbers had not tortiously shot Mr Baker, he would still have had
the original leg injury and the economic losses flowing from it. But if Irene had not
tortiously treated Frank inadequately, he would have survived and not died. In
Bakers case the defendant (the first tortfeasor) was only liable for the continuation
of the original injury and was not liable (as some answers suggested) for the loss of
his leg.
Question 6
There are sound reasons why omissions require different treatment from
positive conduct. It is one thing for the law to say that a person who
undertakes some activity shall take reasonable care not to cause damage to
others. It is another thing for the law to require that a person who is doing
nothing in particular shall take steps to prevent another from suffering harm
from the acts of third parties. (Stovin v Wise, per Lord Hoffmann)
Discuss.
General remarks
This is a straightforward essay on a very well-known theme.
Law cases, reports and other references the Examiners would expect you to
use
There is a wide variety of cases that could be cited to illustrate the topic. There is a
similar observation by Lord Hoffmann in Sutradhar v NERC (2006). There are also

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several cases (e.g. Kent v Griffiths) that could be used to illustrate situations in
which defendants have assumed a responsibility to act positively.
A good answer to this question would
have discussed the following issues. It should explain why omissions are treated
differently from positive acts and whether the stated reasons for doing so are
attractive. It could also have noted that Lord Nicholls said much the same as Lord
Hoffmann in this case, although he reached the opposite conclusion as to the result.
It could also have said a little about the difficulty of drawing a clear distinction
between acts and omissions. A substantial part of the answer could have been
devoted to explaining when defendants are liable to act positively, cases where the
relationship between claimants and defendants is such that the law imposes such a
duty or where the defendant has assumed some responsibility. This could include
situations in which the defendant has failed to prevent a third party from damaging
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 Rachels article appears in some other local newspapers.
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 Shanes 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.

LA3001 Law of tort

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
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 Rachels 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:
Rs 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:
Ss 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

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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. Warhorses 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
Hildas nearby house. The house was badly flooded.
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 Guss 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

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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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