Routledge-Cavendish

Lecturers Resources

Think Points

Chapter 1

  1. Compare and contrast the law of tort with the law of contract and the criminal law. Ensure that you have noted where the distinctions between them are blurred and not as clear cut as may appear at first glance.
  2. To what extent has the widespread use of insurance distorted the deterrent effect of tort? Remember that in most cases, the decision to insure is not a legal obligation (only third party motor vehicle and employers' liability insurance is a statutory requirement, although many business contracts or professional bodies' rules may make it obligatory). What factors may influence the decision of whether, and to what level, to insure a business or home etc? Should people be encouraged or compelled to take out first person insurance, e.g. to cover medical problems, and thereby reduce the requirement for establishing ‘fault’ liability?
  3. Consider the scenario at the end of the chapter. Do you think A and B will feel that they have been dealt with fairly by the law? In what ways could the system be improved for either or both of them?

Chapter 2

  1. Note that Donoghue was decided by a 3 to 2 majority in the House of Lords. What did the minority judges fear?
  2. One of the practical consequences of the “snail in the ginger beer” case was that many ginger beer manufacturers began using glass bottles for ginger beer. Why was this?
  3. Why is it irrelevant that it was never conclusively proved whether there actually was a decomposing snail in Ms Donoghue's ginger beer?

Chapter 3

  1. Why is there a problem with judges developing policy? Whose constitutional role is it to do so?
  2. Some people argue that we have developed a ‘compensation culture’, meaning that whenever anyone is hurt they expect to be able to claim compensation from someone. Do decisions like that in Smolden v Whitworth and Nolan (1997) (page 32) encourage more claims, or do they ensure fewer injuries are caused because of people being more careful? What other consequences may there be? See further on this issue pages 133–134 and Chapter 22.

Chapter 4

  1. Do you think it is justifiable to deny a victim's family, friends or onlookers etc the possibility of claiming for the distress or grief caused by a defendant's negligence? What problems might there be if this was allowed?
  2. Consider the difficulties the courts have had with dealing with the question of whether defendants owe a duty of care to those who suffer solely a mental or psychiatric injury as a result of their negligence. Is the division into primary and secondary victims helpful? Since Page v Smith (1994) it has been suggested by some that primary victims may be too easily compensated, while there are too many hurdles for secondary victims. Can you explain this concern? Should Parliament become involved in this area, as the courts and Law Commission have suggested?
  3. Do you feel the Hillsborough claimants in Alcock v Chief Constable of South Yorkshire Police (1992) should have been compensated? Remember that the police had admitted negligence, i.e. breach of duty, so that was not an issue, only whether a duty was owed to that category of victims at all.

Chapter 5

  1. What advice would you give to someone contemplating writing a reference based on the decision in Spring v Guardian Assurance (1995)? Remember that there is not usually a requirement to give a reference at all. Would a new employer who relied on a misleading reference to employ a member of staff have any right of action against the company which supplied the reference?
  2. In Weller v Foot and Mouth Institute Research Institute (1966), the auctioneers lost their livelihood to the same extent as the farmers whose cattle were destroyed, but they did not receive compensation. Similarly, in more recent outbreaks of this disease, farmers were compensated for their losses but not other rural businesses such as hotel and restaurants which were affected. Can this distinction between ‘consequential’ and ‘pure’ financial loss be justified?
  3. In McFarlane v Tayside Health Board (1999), the House of Lords decided that there should be no compensation for the costs associated with the upbringing of an unintended but healthy and subsequently loved child. However, the mother did receive a relatively small amount for the pain and suffering associated with childbirth. Controversially, the courts subsequently also awarded a conventional award of £15,000 to “mark the injury” in the case of Rees v Darlington Memorial Hospital NHS Trust (2003) when a mother had a child despite having had a sterilisation. See p. 82 and further discussion of these cases at pages 442–5. Do you agree with these decisions?

Chapter 6

  1. Do you think that the mother in Hill v Chief Constable of West Yorkshire (1988) pursued her case against the police in order to gain money compensation for the loss of her daughter? Which of the other aims of tort (see pages 13–14 ) was a more likely motivating factor for her? If money was not the main motivation, does the fact that an alternative source of compensation, i.e. the Criminal Injuries Compensation Scheme, was available, justify denying her a remedy from the police?
  2. Consider the case of Brooks v Commissioner of Police for the Metropolis (2005), pages 103–105. Do you agree with the House of Lords' assessment in this and the Hill case that to impose a duty of care on the police in these circumstances would interfere with the freedom of action which the police needed when investigating serious crime (often referred to as “defensive policing”)? Remember that there are other methods of challenging police behaviour, such as official complaints procedures, and see the cases in Chapter 13.
  3. Why has it proved difficult to establish liability against local authorities? To what extent does the low turn out for local council elections undermine the argument that the council is answerable to its electorate as a whole, rather than owing a duty of care to individuals?

Chapter 7

  1. Can you suggest a more modern equivalent of “the man on the Clapham omnibus” to represent the reasonable man (and woman)?
  2. Bear in mind that in the past, such as in the Bolam case, the question of whether the defendant had behaved reasonably in the circumstances would have been answered by a jury of, ostensibly, “reasonable” men and women. Since the abolition of jury trials in most civil cases, the question has now been decided by the judge (or judges). How far might the fact that the judiciary is still predominantly white, male and middle class have a bearing on their view of “the traveller on the London underground” (Lord Steyn's answer to question 1, above)?
  3. Why do you think there are so few cases involving child defendants, Mullin v Richards (1988) being a rare exception?
  4. Is it appropriate that medical professionals should set standards of care for doctors, as in Bolam, notwithstanding the modification introduced by Bolitho? Can you suggest why the courts sometimes seem to be less likely to take common practice as acceptable (i.e. not negligent) in professions other than doctors e.g. challenging seamanship in Re Herald of Free Enterprise (1989) case and even lawyers in Edward Wong Finance Co Ltd v Johnson Stokes and Masters (1984)?

Chapter 8

  1. Do you agree with Lord Steyn that the decision in Chester v Afshar (2004) was “a narrow and modest departure” from traditional causation principles? Do you think that there should be a separate tort of failing to inform a patient of the risks of medical treatment (see further on this, pages 150–4)? Why is medical treatment different from information given by, say, a lawyer, teacher, accountant or other professional?
  2. As a result of the decision in Barker v Corus, the government immediately introduced legislation to reverse the decision (Compensation Act 2006, s.3), and gave the provision retrospective effect (i.e. it was to be treated as always having been the law.) Why was this a controversial move, and why are there concerns about legislating retrospectively?
  3. In order to have received compensation, the claimant in Hotson v East Berks HA (1987) would have had to show that he had at least a 51% chance of not suffering the disability if he had been treated earlier. 50% or less would have meant that he had not established that it was more likely than not (i.e. on the balance of probabilities), and so would get nothing, whereas with a 51% or more chance he would receive 100% of his assessed compensation (subject to any deduction for contributory negligence, if any). Is this all or nothing approach fair, or would the lower courts' approach of giving him a percentage of his compensation have been better? Consider also the later Gregg case, below.
  4. Consider the arguments made by the House of Lords in Gregg v Scott (2005), pages 175–178. Which of their Lordships opinions do you agree with? Note that the decision was decided by a 3 to 2 majority, and came shortly after what could be seen as more ‘flexible’ approaches to causation in Fairchild and Chester. Do you think that it was right that Mr Gregg should have got no compensation at all, notwithstanding that he had fortunately survived longer than the 10 years by the time of the House of Lords case?

Chapter 9

  1. Most statutes do not specify whether breaches of a statutory duty give rise to a civil action. Do you think that it is satisfactory that it is left for the courts to decide the issue? What problems might arise as a result of this?
  2. Compare and contrast the protection of employees by means of an action in employers' liability in Chapter 14 and that by means of an action in breach of statutory duty under the Health and Safety at Work Act 1974 regulations. Which method seems to be the best means of ensuring injured employees are compensated?

Chapter 10

  1. Many people are unaware that their household contents insurance policy (if they have one) covers occupiers' liability. What difference does it make if such insurance exists to someone who is injured while visiting someone else's home?
  2. Many of the cases under the Occupiers' Liability Act 1984 concern children. Should the Act have included specific provisions for child trespassers, or do the cases suggest that the legislation is operating satisfactorily?
  3. Why does the author suggest on page 228 that those entering land with a right to do so under the Countryside and Rights of Way Act 2000 are in a less advantageous situation than trespassers under the Occupiers' Liability Act 1984? Does this seem justifiable?

Chapter 11

  1. The sign seen fairly frequently — TRESPASSERS WILL BE PROSECUTED — is rarely accurate, as most acts of trespass to land will be a tort, not a crime. Why do you think landowners use the legally incorrect form of words, rather than a more accurate: TRESPASSERS MAY BE SUED?
  2. Do you agree with the outcome of the case of Revill v Newbury on pages 239 and 241, or do you think that the opinion of the burglar quoted in the vineyard case has more validity?
  3. In Sturges v Bridgman (1879) it was explained that:
    “What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.”
    Can you substitute two local areas which you are familiar with to make this statement more meaningful to yourself? Is it fair that someone who lives in a poor area should have to put up with more than those in a better class of neighbourhood?

Chapter 12

  1. In the light of your knowledge about liability for animals, what factors should be taken into account when deciding whether or not to put a notice on your gate or door saying: BEWARE OF THE DOG?
  2. Can you envisage a case being brought about damage caused by a cat: for example, where a cat runs out into the road in front a car causing the driver to swerve and crash, OR damaging a neighbour's lawn? What might such an action be founded on, and what might be the outcome of such a case?

Chapter 13

  1. Consider the case of Austin & Anr v Commissioner of Police of the Metropolis (2005), page 301. Do your sympathies lie with the police, the protestors, and/or the “innocent bystanders”, like G, who were caught up in the situation and prevented from leaving for seven hours? Note that this demonstration took place before 9/11: do you think the situation would be any different now?
  2. Do you agree with the decision of the Court of Appeal on page 309 to allow the fathers' views to override the mothers' views on vaccinations? At what age do you think the child's view should prevail? Bear in mind here the issue of Gillick competence (see page 309 and further p.479.)
  3. Note how many of the cases in this chapter might be regarded as to do with ‘civil liberties’ or ‘human rights” law. Do you think tort still has a role to play in this area, or has the introduction of the Human Rights Act 1998 made these ancient principles redundant?

Chapter 14

  1. Do you consider that employees deserve to be in a better position than others who are injured by accidents as they have access to state compensation through the Industrial Injuries scheme as well as a possible tort action for compensation? Should the right to both be restricted? What burden is placed on employers by the requirement to insure against accidents?
  2. Why might an employee prefer to use the Consumer Protection Act 1987 to sue the manufacturer if injured by defective machinery at work rather than sue his/her own employer? What problems might be caused by taking legal action against one's employer?

Chapter 15

  1. If the factual circumstances of Donoghue v Stevenson (1932) occurred today, the claim would not be taken in negligence but under the Consumer Protection Act 1987. Explain why the latter would be more advantageous to Ms. Donoghue than a negligence claim.
  2. Those injured by defective products represent another category of injured persons (like employees referred to in the previous chapter's Think Point) who have a better chance of receiving compensation under the strict liability regime of the Consumer Protection Act 1987 than others injured, for example, by medical negligence, where fault has to be proved, or those with genetic injuries, who will probably receive no compensation at all. Should there be these differences, or should there be one form of compensation for all victims of accidental injury? What would be the drawbacks or advantages of such a scheme? (See further the discussion about no-fault compensation schemes at page 500.)
  3. The Consumer Protection Act 1987 was primarily designed to protect those who suffered from personal injuries, but damage to private property over £275 was also included. Do you think it is worthwhile to exclude property damage under this figure? What could someone do if their property worth £200 was damaged by a defective product?

Chapter 16

  1. What justifications can be made for the existence of employers' vicarious liability for employees? To whose advantage does it work: employer, employee, or victim?
  2. Do you think that doctors should have to pay premiums to cover their liability for negligence as they did up until 1991, or should the money be paid by the health authorities and NHS hospitals on the basis of their vicarious liability for their employees? What difference might it make to:
    1. doctors
    2. patients
    3. the NHS?
  3. Look at the two cases taken against the London Omnibus Co: Limpus (1862) and Beard(1900). Can you explain why the company was vicariously liable in one of the cases, but not the other?

Chapter 17

  1. Despite the introduction of the Torts (Interference with Goods) Act 1977, there are still some areas of difficulty and ambiguity in relation to trespass to goods. Can you identify these?
  2. Should the legislature revisit this area to improve the statutory provisions, or can you think of other areas of tort which are more deserving of Parliamentary time and scrutiny?

Chapter 18

  1. Why do you think that there has never been public funding for defamation cases? In the light of the so-called Mclibel case (detailed on pages 397 and 401), should this be changed, or has the introduction of ‘no win, no fee cases&rdsuo; dealt with the problem?
  2. Conditional fee, or ‘no win no fee’, arrangements may have made it theoretically possible for those of limited means to pursue a defamation case, but it has been said to have had a “chilling effect” on journalists. Do you think that people like Naomi Campbell making use of cfas to fund their cases could lead to newspapers and other publications being reluctant to publish controversial material if they fear being sued, because if they lose, they are having to pay not only their own legal costs but the other side's plus the ‘uplift’ for the claimant's lawyer?
  3. Consider the role of juries in defamation trials. Do you think juries should be retained in this area of the law of tort, especially when there has been criticism of the level of damages they award?

Chapter 19

  1. To what extent do you think celebrities deserve to be able to preserve their privacy when they often actively seek publicity to pursue their careers? Where should the dividing line be drawn between their right to a private life and the public's apparent interest in the minutiae of their lives?
  2. In Douglas v Hello! (2005) Lindsay J. warned that “if Parliament does not step in then the Courts will be obliged to” in order to rectify the inadequacies in the current law on privacy. Since then, other high profile cases such as Moseley (2008) have been decided with important implications for the limits of press freedom. Is it appropriate to allow an important new area of law to be developed in an ad hoc fashion by the courts, or does Parliament need to ‘step in’?

Chapter 20

  1. Despite the best efforts of the courts, why is it impossible to put the claimant back in the position she or he was in before the accident? How can a monetary value be put on the loss of a limb etc.? Look at the examples on pages 462–464 to help you think about this issue.
  2. What are the advantages and disadvantages of lump sum or periodical payments to:
    1. the victim/claimant
    2. the defendant
    3. insurance companies
    4. lawyers
    5. the government?
    Whose interests should prevail? To what extent will structured settlements improve the situation for any or all of the above categories of interested parties?
  3. Consider the recent case of Appleton v. El Safty (2007), involving injury to a premier league footballer (page 447). Note the way in which his damages were calculated. Do you think he received a reasonable amount? How else could or should his compensation have been calculated?

Chapter 21

  1. Do you think that the reduction of a claimant's damages by 25% for failure to wear a seatbelt in a road accident when, if worn, there would have been no injuries at all is a reasonable outcome? Should the reduction be higher, lower, or none at all, bearing in mind that the defendant must have been at fault for the accident? Should it make a difference that it is now a crime not to be wearing a seatbelt?
  2. Do you feel that the claimants in the cases of Gray v Thames Trains and Network Rail (2007), Meah v McCreamer (1985), Worrall v BRB (1999), and Clunis v Camden & Islington HA (1998) were fairly treated by the courts, or should the fact that they had committed crimes preclude them from compensation? (Remember that they would only be entitled to this compensation if the person they were suing had committed a tort, or wrong, against them).
  3. Look again at the series of cases decided by the House of Lords in 2008 on pages 492–4. Why were they considered to be so significant?

Chapter 22

  1. What examples can you give of the existence of the ‘compensation culture’ in this country? (Refer back again to pages 133–4, and your response to the Think Point in Chapter 3.) Why is it perceived to be a problem? What effect, if any, is the introduction of the Compensation Act 2006 likely to have on this area?
  2. How important do you think it is for someone who feels they have been wronged by another to be able to have their ‘day in court’? To what extent does the current practice and procedure of the law of tort allow this to be attained?
  3. Explain and evaluate the author's statement on page 504 that tort encourages “careful conduct … and formal risk management”.