Tort Law moot help? No idea where to start. Watch

jool
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Hey guys, please see moot problem quoted.

The Countryshire police received a tip-off that two middle-aged men, who had convictions for burglary and firearm offences, were planning a night time raid on particular premises. Police offices were stationed in the vicinity of the premises and two police marksmen, Earp and Wyatt, were positioned inside the building. Two intruders were seen to enter the building and one of them was shot and fatally injured by Earp. The victim turned out to be a fifteen year old boy, Adam, who was carrying out a burglary with his seventeen year old brother Brian - neither of them had previous convictions and neither was armed. Wyatt, who had already apprehended Brian without any resistance, was horrified when he saw the younger boy gunned down by Earp. Earp had wrongly assumed that Adam was carrying a gun - in fact it was a large torch.

Wyatt suffered a severe psychological illness as a result of the incident and has had to retire from the police force. He claims that the whole police operation was ‘botched’. The police officers outside the premises should have realised that the two boys were not the men the police were hoping to apprehend and the fatal shooting of an unarmed fifteen-year-old boy was completely unjustified. Wyatt is now suing the Chief Constable of the Countryshire Police, seeking to hold him vicariously liable for the negligence of the police officers and, in particular, Earp.
At first instance, it was held that:

Wyatt was employed as a police marksman. He knew that circumstances might arise in which he or his colleague would have to use their guns. He was also aware that in these difficult situations there was always a possibility of a miscalculation being made. These were risks which Wyatt could be taken to have voluntarily assumed. It was not, therefore, just and reasonable to hold that Wyatt was owed a duty of care.
I essentially have to appeal against this point and suggest that it was just and reasonable to hold Wyatt was owed a duty of care - however I have absolutely no idea where to start, we've just started tort this week and I've not done a huge amount of work on it yet - I don't want the answer but could somebody give me a gentle nudge in the right direction? I'm familiar with the developments of cases like Donoghue, Anns and Caparo but this just seems too basic for a moot given the complex points we have covered in previous moots. Is there a specific area I should be looking at?

Thank you in advance.
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Forum User
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(Original post by jool)
Hey guys, please see moot problem quoted.
Been ages since I did Tort. I think you should start by looking at White v Chief Constable of South Yorkshire Police since you will need to distinguish it.
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jool
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(Original post by Forum User)
Been ages since I did Tort. I think you should start by looking at White v Chief Constable of South Yorkshire Police since you will need to distinguish it.
Thank you Forum User, I've just had a quick glance and it looks as though my focus will be on psychiatric injury and primary and secondary victims, it's not until a week on Wednesday so I've got quite a bit of time to prepare. If anybody else has any further suggestions that would be great.
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jool
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Does anybody else have any ideas on this?
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cliffg
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(Original post by jool)
Does anybody else have any ideas on this?
Like Forum User above it's been a few years since I studied tort (so I might be talking nonsense) but would suggest that you look up the cases re Volenti non fit injuria, that's the voluntary assumption of risk aspect. Also look at an ECtHR case Brady v UK Application no. 55151/00, 2 April 2001 or track it back to the English Courts decisions - it's not a tort claim in your sense but the facts are so similar (a botched police operation, unarmed person shot by police,thought it was a gun, was a torch), that you might find something in there to argue with,or that you're being pointed towards it. He did not voluntarily accept the risk that the police would plan an operation so badly. Also a final, almost crazy suggestion, that the Hillsborough cases, Alcock and White should be set aside as they were based on arguments arising from evidence now known to be seriously flawed. Bit of a long shot, maybe.
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jool
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(Original post by cliffg)
Like Forum User above it's been a few years since I studied tort (so I might be talking nonsense) but would suggest that you look up the cases re Volenti non fit injuria, that's the voluntary assumption of risk aspect. Also look at an ECtHR case Brady v UK Application no. 55151/00, 2 April 2001 or track it back to the English Courts decisions - it's not a tort claim in your sense but the facts are so similar (a botched police operation, unarmed person shot by police,thought it was a gun, was a torch), that you might find something in there to argue with,or that you're being pointed towards it. He did not voluntarily accept the risk that the police would plan an operation so badly. Also a final, almost crazy suggestion, that the Hillsborough cases, Alcock and White should be set aside as they were based on arguments arising from evidence now known to be seriously flawed. Bit of a long shot, maybe.
Thank you for the quick reply cliffg, I got some of the more complicated textbooks for tort out of the library earlier and I think I'm beginning to form some ideas, I should be able to put something half decent together. I will definitely take a look at the ECtHR case you have referred, sounds very interesting! Also I had initially dismissed Alcock and White as being irrelevant to my point but that certainly sounds like something I should look at.

Thank you both again, very grateful!
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SimranS02
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Hey,
Can I know what kind of arguments and cases you used? I have a similar moot!
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Democracy2013
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Hello what is your moot question?
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SimranS02
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(Original post by Democracy2013)
Hello what is your moot question?
Hi,
Its exactly the same moot problem and I am arguing the second ground of appeal!
"Wyatt was employed as a police marksman. He knew that circumstances might arise in which he or his colleague would have to use their guns. He was also aware that in these difficult situations there was always a possibility of a miscalculation being made. These were risks which Wyatt could be taken to have voluntarily assumed. It was not, therefore, just and reasonable to hold that Wyatt was owed a duty of care."
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