Tort section, unit 2 model answers?

Hey everyone, I'd like to ask does anyone have tort law unit 2 model answers? It seems most are doing contract for section B. I'm behind on notes at the moment and my exam is in two weeks. I'm even willing to pay for any resources concerning the model answers. Thanks!

you doing aqa?

Original post by joemadri10

you doing aqa?

Yes

Reply 3

elliemayanne

I'll help - it will be good revision haha. These are some questions with no application FYI.

How to prove duty of care- (side note- not everyone gets taught the exact same cases, so just use this is compliment your own notes)

"Donoghue v Stevenson established the neighbour principle where one must take reasonable care to avoid acts or omissions which one can reasonably foresee will be likely to injure your neighbour. It defined your neighbour as someone so closely and directly affected by my act that I ought reasonably to have had them in my contemplation as to being so affected. Caparo v Dickman outlines a three part test to establish a duty of care.

The first is an objective test of foreseeability. In Kent v Griffiths, it was reasonably foreseeable that the ambulance being delayed would further injure the claimant.

The second is proximity, meaning closeness. This can occur through time, distance and relationship. Bourhill v Young demonstrates no proximity, as the lady was safely distant from the accident and later viewed the accident from free will - so no duty of care for her miscarriage. However, McLoughlin v O'Brien showed proximate relationship, as the claimant was the mother and wife of other victims and of course suffered shock from this.

The third is reasonableness, born out of public policy. It must not open the 'floodgates of litigation'. Hill v CC of West Yorkshire showed it was unreasonable to impose a duty of care because the police should be able to work without undue worry of claims of negligence. However, MPC v Reeves was reasonable because the police failed to prevent the suicide from an identified risk.
(examples for extra marks if you have time) - In Orange v CC West Yorkshire clarified that it is only reasonable to have a duty of care if suicide risks are known beforehand.
Vellino v CC Greater Manchester it is unreasonable if the claimant is injured whilst trying to escape from prison.

Reply 4

elliemayanne

Breach of duty - Now there are two components to this. Reasonable man and risk factors. I will split them into two different questions. If they ask two in one question, I usually just choose the ones which relate to the specific scenario instead of writing all of them.

(1) REASONABLE MAN -

Blyth v Birmingham Waterworks defined the reasonable man as the ordinary person doing the ordinary task ; he is expected to perform it reasonably competently.

The first type is the ordinary man performing the particular task. Wells v Cooper showed that an ordinary DIY homeowner did not breach his duty for incorrectly fitting a door handle which resulted in injury as he could only be held to the standard of an ordinary man.

The second is a learner. Nettleship v Weston showed that a learner driver will be held to the standard of a qualified driver should they be responsible for an accident, in this case her instructor.

The third is a professional. The issue of relaxant drugs in Bollam v FBHMC established a two part test. Did their conduct fall below the standard of other professionals in their field, and is there a substantial body of opinion willing to support their actions? However, Bolitho v City and Hackney HA showed that this can still be overturned if the judge feels that there is no logic in their reasoning for action. Also, Roe v Minister of Health showed you cannot take precautions for unknown risks Montgomery v Lanarkshire Health Board showed that there is no breach if a doctor warns of a risk and said risk then occurs.

The final is a young person. Mullins v Richards showed that a 15 year old girl was not in breach for blinding a girl in a ruler fight and she was held to the standard of a reasonable child, not adult.

Reply 5

TROLO9L0O

Original post by Cherry82

the answer is always jesus, just accept god into youre life and things will always work out. the law is only what jesus wants it to be so saying him will always be correct

You hero 💕

Can you do some model answers for procedure to trial ?

Original post by elliemayanne

Reply 8

elliemayanne

Absolutely! It's only 5 marks and used in application, so it is nice to remember.

First the claimant would need to fill in a claims form. Next, they would instruct a solicitor who may even fill out the form on their behalf. The solicitor would commence initial investigations into the case, and gather information.Then a letter of claim would be sent to the defendant, who would have the option to either admit or deny liability.
Both the claimant and the defendant agree to a Joint Medical Expert to assess and value any personal injuries. (here is a good place to do application and mention any PI)
Then an official valuation of the case is made to assess the particulars of the claim. (discuss what would need to be considered in the scenario e.g any property damage, what are the long term impacts of the accident etc...)
Then there are negotiations, and if this does not produce a settlement court proceedings are issued.

Original post by joemadri10

Can you do some model answers for procedure to trial ?

Reply 9

elliemayanne

If any one has any questions, just pop me a private message :smile:

Reply 10

elliemayanne

(2) Risk Factors

Risk factors are factors that increase or decrease the standard of care expected.

The first is the size of the risk. In Bolton v Stone the risk was minimal because the ball had only gone over the wall 6 times in 30 years. However, in Haley v LEB the risk was large because it was foreseeable that a blind man may walk down the road and fall into their hole.

The second is the benefit to taking the risk. Watt v Hert CC showed that the need to take practical precautions can be ignored if it is a matter of public safety. Similarly in Day v High Performance Sport, the benefit was rescuing the claimant, even though she had contributory negligence.

Thirdly, taking practical precautions decreases the level of care. Latimer v AEC had no breach because they had taken all reasonable precautions in the flood like putting up signs, mopping and laying sawdust.

Finally, having special characteristics increases the standard. Paris v Stepney BC showed that duty is owed to the particular claimant i.e one with one eye, not to a class of reasonable workers. Walker v Northumberland CC showed an employer can be liable for mental health issues from work related stress. Also Morrel v Owen showed that there is a higher standard when holding an event like archery for people with vulnerabilities.

Reply 11

elliemayanne

Causation and remoteness is a really hard one to get your head around, so this answer might help.
There are two versions. One is for explanation only, and the other is for application only. I will post both.

Explanation only.
Factual Causation is established by Barnett v Chelsea and Kensington Hospital. But for the doctor refusing to treat the patient, they would have died anyway. The doctor is not the factual cause. This concept is also explored in Chester v Afshar ... But for the doctor warning the patient of the risks, they may have died anyway if they had chosen to continue with the procedure. However, the liability comes from the doctor not warning them.

The Wagon Mound Case 1961. If harm is not foreseeable, it is considered 'too remote' from the breach and thus unclaimable. The damage by oil was foreseeable, but the subsequent fire was too remote. Hughes v The Lord Advocate showed as the type of harm of burns was foreseeable, it did not matter that it happened in an unforeseeable way like the explosion. Bradford v Robinson Rentals showed it is not necessary to foresee the full extent of the harm of frostbite.
Smith v Leech Brain illustrates the thin skull rule. The defendant must take their victim as they find them, in this case with pre-cancerous cells in his lip.

Application only

Factual Causation is established by Barnett v Chelsea and Kensington Hospital. But for the doctor refusing to treat the patient, they would have died anyway. The doctor is not the factual cause.

IF THERE ARE MULTIPLE CAUSES - McGhee v NCB established test of 'Has this breach materially increased the risk of harm?' use if relevant
Fairchild v Glenhaven Funeral Services. all defendants can be fully liable even if the specific cause cannot be identified.
Barker v Corus Liability can be apportioned between defendants.

If there are any novus actus interveniens (intervening acts) you can pick the relevant ones to a scenario
Nature - Carslogie v Royal Norwegian Government
3rd party - Knightley v Johns
Claimants own actions - McKew v Holland.

The Wagon Mound Case 1961. If harm is not foreseeable, it is considered 'too remote' from the breach and thus unclaimable. The damage by oil was foreseeable, but the subsequent fire was too remote. Hughes v The Lord Advocate showed as the type of harm of burns was foreseeable, it did not matter that it happened in an unforeseeable way like the explosion. Bradford v Robinson Rentals showed it is not necessary to foresee the full extent of the harm of frostbite. Smith v Leech Brain illustrates the thin skull rule. The defendant must take their victim as they find them, in this case with pre-cancerous cells in his lip.

(edited 6 years ago)

Reply 12

elliemayanne

Res ipsa loquitur - god it took me months to be able to say this!!

Res ipsa loquitur is latin for 'the facts speak for themselves'. However it was widely defined in Bergin v David Wickes TV Ltd as ''a convenient label for a group of situations in which an unexplained accident is, as a matter of common sense, the basis of an inference of negligence".
(if you can memorise this the examiner will love you)
There are three parts to be proven.

Firstly, the defendant must have been in control of the situation. In Mahon v Osbourne, the surgical team were clearly in control of the patient who died yet should have survived because a swab was left in their body

Secondly, it needs to be more likely than not that negligence was the cause of the accident. In Pearson v Western Gas Board, it was more likely the cause of cold weather for a gas leak than negligence, because the gas board had regular maintenance checks.

Finally, there must be no other explanation for the accident. In Scott v London and St Katherine Docks there was no other explanation for the claimants injury other than 6 bags of sugar falling from a crane.

The burden of proof shifts to the defendant, who must disprove res ipsa loquitur.

Reply 13

elliemayanne

The three track system. This is super easy so always good to remember.

There are three claim tracks according to the Civil Procedures Act 1997.

Small claims are heard by a district judge in a county court. These are for claims up to £10,000 and PI claims for up to £1,000. They are usually straightforward.

Fast track claims are also heard by a district judge in a county court. These are for claims from £10,000 to £25,000, and PI claims from £1,000 to £25,000. They have limited oral evidence and are likely to be completed in one day. They are not complex and unlikely to be contested.

Finally there are multi tracks, heard by a circuit judge in either county or high court depending on whether the claim was above or below £50,000. These are complex and/or high value cases. This track is if a claim does fall within small claims or fast track.

Reply 14

elliemayanne

Calculating damages.

When calculating damages, the courts aim to restore the claimant to the position that they would have been in had the accident not occurred. They aim to be compensatory, not punishing. As the claimant should not profit, the principle of mitigation must be followed, meaning an attempt to reduce the severity of the accident. For PI claims it is also common to receive a quantum to encourage settlement outside of court.

Damages will be decreased if there is contributory negligence, although according to Donnelly v Joyce this excludes children. Damages will only be awarded once, regardless of whether there are multiple causes.

Special damages are compensation for any financial losses up to the date of trial.
General damages are calculated to compensate for non- quantifiable damage as a result of the accident. This is split into firstly pecuniary losses, which cover future earnings from work or future medical bills. Secondly, non - pecuniary losses which cover pain and suffering and loss of amenity.

This is illustrated through Jefford v Gee. where special damages were received for the damage to the motor vehicle and loss of income, and general damages for pain and suffering of broken limbs like his leg.

A court may pay via a lump sum if it is for the loss of goods. However, periodical payments provides a steady income for their whole life. PI claims are also likely to have structured settlements (Damages Act 1996). This prevents over and under compensation, and provides security.

Reply 15

Cherry82

Original post by elliemayanne

Thank you so much <3 I was particularly struggling with the last questions that ask things on Damages, procedure to trial etc so seeing your model answers was extremely helpful!

Reply 16

elliemayanne

Glad I could help :smile:

Original post by Cherry82

Thank you so much <3 I was particularly struggling with the last questions that ask things on Damages, procedure to trial etc so seeing your model answers was extremely helpful!