Essentials of Law Questions and Answers Section B Part 2

9. Darcey has booked and paid for a place on Craig’s ‘Learn the Rumba’ course. On arriving at the dance school, she is handed a piece of paper headed ‘Terms of Agreement’. In her excitement, she signs it without bothering to read it. The document contained the following clause: “Craig’s Dance School accepts no responsibility for any loss or injury to students, whosoever caused.” Darcey runs onto the dance floor, slips and breaks her ankle. It transpires that Craig mistakenly polished the floor with his hair wax, rather than proper floor wax. Can Craig rely on the exclusion clause in defence of Darcey’s claim for damages? In order to determine whether Craig can rely on the exclusion clause, it is necessary to consider two issues: (i) (ii) Whether the clause was incorporated; and Whether the clause is valid. In order to be effective, a term must have been incorporated into the contract between the parties. Terms can be incorporated by signature, by notice and by course of dealing or trade custom. In the present scenario, Darcey signed the contract without reading it. The general rule is that a party is bound by his signature, regardless of whether or not the party signing the document has read it (L’Estrange v Graucob). However, although the exclusion clause may have been incorporated, it is necessary to consider whether it is valid. The validity of contract terms in consumer contracts is now governed by the Consumer Rights Act 2015. Darcey would be classified as a ‘consumer’ if she is acting for purposes that are wholly or mainly outside her trade, business, craft or profession. Section 62 states that a trader (i.e. Craig) cannot exclude or restrict liability for death or personal injury resulting from negligence. Accordingly, if negligence is proven in respect of the erroneous use of hair polish on the floor, Craig would be unable to rely on the exclusion clause in the contract. If Darcey is not deemed to be a ‘consumer’ for the purposes of the Consumer Rights Act, but is acting in the course of business, the relevant statute is the Unfair Contract Terms Act 1977. Section 2(1) of the Act states that liability for death or personal injury due to negligence cannot be excluded or limited. Craig would unable to rely on the exclusion clause in a business to contract if Darcey’s injury is attributable to his negligence. 10. 10. Examine the issues that need to be proved to establish that a Defendant is in breach of their duty of care in relation to the tort of negligence. ● General introduction to the tort of negligence & the 3 factors to establish: duty of care owed, breach of duty and causation Donoghue v Stevenson “neighbour principle” - Lord Atkins. ● To establish a breach of duty, you need to know what standard of care D is to be held to: ● Standard of care (cover briefly) – D must act with the degree of care and skill expected from the reasonable man in D’s position. ● Factors to ignore: o Mental characteristics – Dunnage v Randall o Intoxication o Inexperience – Nettleship v Weston ● Factors to take into account: o Age eg. Mullin v Richard, Orchard v Lee or McHale v Watson o Physical characteristics o D acting in an emergency eg. Whitehouse v Jordan, John Munroe v London Fire Brigade and Watt v Hertfordshire ● ● ● ● ● 11. o Professional Skills/negligence – Bolam v Friern Hospital Management Committee test – “standard of the ordinary, skilled person exercising and professing to have a particular skill”. Highlight the rules in relation to doctors, that a doctor acting in accordance with a responsible body of medical opinion is not negligent simply because there is a body of contrary opinion. Importance of the Bolitho v Hackney Health Authority refinement of the Bolam test – not enough for D to show that they followed expert opinion, they must justify their use of it in the circumstances, showing that they weighed up the risks & benefits (ie. it has a logical basis). Breach of duty. 4 factors in Bolton v Stone: ○ Likelihood of harm ○ Seriousness of harm o Cost/practicalities of prevention o Social usefulness of D’s activities Students may choose to compare Bolton v Stone with Miller v Jackson. Perhaps mention Paris v Stepney BC. Consider s.11(2) Civil Evidence Act 1968 – proof of criminal conviction can be pleaded as evidence. Consider res ipsa loquitur – where the thing speaks for itself. Shifts burden of proving not negligent to D – Ward v Tesco Stores: ○ Can’t determine exact cause of accident ○ Damage caused by negligence ○ D was in control of thing/situation Critically examine the law in relation to legal causation/remoteness of damage. ● General introduction to the tort of negligence & the 3 factors to establish: duty of care owed, breach of duty and causation Donoghue v Stevenson “neighbour principle” - Lord Atkins. ● Mention Causation in fact - “but for” test, Barnett v Chelsea & Kensington or McWilliams & Arrol. ● Causation in law - loss/damage must be “reasonably foreseeable”. Historical test of direct consequences Re. Polemis overruled by The Wagon Mound. ● The Wagon Mound 3 characteristics for remoteness of damage: ○ Kind/type of damage foreseeable - injury and damage to property are both reasonably foreseeable- Bradford v Robinson Rentals or Hughes v Lord Advocate ○ Manner of infliction of damage - some harm is foreseeable, don’t need to foresee the precise way it is inflicted - Hughes v Lord Advocate ○ Extent of damage - full extent does not need to be foreseeable as long as some harm is foreseeable (Hughes) ● The Egg-Shell Skull rule Smith v Leech Brain: full extent of damage is recoverable. Other eg. mental characteristics Page v Smith & financial vulnerability Lagden v O’Connor. ● Better students will give their view on the fairness of the law as the question asks them to “critically examine” the law. 12. Examine the issues that need to be proved to establish liability for negligent misstatement. Historically, duty of care for negligent acts, not for negligent statements. Restriction on claims for pure economic loss – law extended in 1964  Hedley Byrne v Heller changed the law in 1964. Introduced concept of negligent misstatement & claims for pure economic loss if can establish a “special relationship”.  Duty owed for financial loss caused by D’s negligent misstatement: o Caparo v Dickman – 3 stage test (Reasonable foreseeability, proximity & fairness) + “special relationship” o Hedley Byrne Special Relationship =  D possesses a special skill (Mutual Life v Evatt, Chaudhary v Prabaker)  D voluntarily assumes risk (express/implied)  C must rely on statement to his detriment (Yianni v Edwin Evans, Morgan Crucible v Hill Samuel)  C’s reliance must be reasonable (James McNaughton v Hicks Anderson) o Caparo restriction:  D knew C’s identity (identifiable C or member of identifiable group)  Identifiable transaction/type  Reasonable reliance  Conclusion – extension of the law, carefully circumscribed by precise rules, to ensure fairness to Ds & not to open floodgates to large number of claims for pure economic loss which is harder to prove. 13. Critically examine some of the policy issues that judges take into account in the law of negligence. This is an essay topic which students could take in any number of directions. They could choose from some (obviously not all) of the issues below which illustrate policy decisions.  3rd Stage of Caparo v Dickman test – introduced in addition to the first 2 stages which appeared in Donoghue v Stevenson – “Fair, just & reasonable in all the circumstances to impose a duty of care”.       o Hill v Chief Constable of West Yorkshire – Yorkshire Ripper case o Some students may note that reasonable foreseeability itself can be interpreted in a flexible way, to exclude liability in certain circumstances. Imbalance of mental characteristics & physical characteristics in the factors to be considered in establishing a standard of care. Can take account of physical difficulties, not mental – eg. Dunnage v Randall. General discussion of whether the Courts are more lenient to public servants as Ds eg. Police, emergency services, doctors? o Take account of D acting in an emergency in setting the standard of care: Whitehouse v Jordan, Watt v Hertfordshire & John Munroe v London Fire Brigade. o Bolam test & Bolitho refinement. o Hillsborough cases – re. police Breach of duty – Bolton v Stone factors are all a judgement call, allowing judges to exercise their discretion. Eg. Views on cricket as a socially useful pastime (Bolton v Stone and Miller v Jackson) & emergencies eg. Watt. Relaxing of causation rules in relation to mesothelioma cases – Fairchild v Glenhaven, Sienkiewicz v Greif, s.3 Compensation Act 2006. Illegality defence (ex turpi causa non oritur actio) – Joyce v O’Brien, Ashton v Turner, Pitts v Hunt, Smith v Stretton etc. Law on Psychiatric Injuries – Alcock v Chief Constable South Yorkshire. Arbitrary distinctions on who can recover and in what circumstanes. Consider the bedside cases & how the law has been extended, especially North Glamorgan v Walters (36 hour shocking event). Perhaps mention the Law Commission report & Negligence & Damages Bill – trying to reform the law.  Conclusion – this is important. What do these cases show? Do the judges have too much discretion? Are there other areas where more discretion would be advisable eg. Psychiatric injuries – secondary victims. Students would be expected to have some kind of analytical conclusion based upon the topics they have chosen to write about – the title says “critically examine”. 14. Liam and Zayn are in the middle of committing a burglary and need to make a quick getaway when the police arrive. They steal a rideon lawnmower and speed off into the distance. Liam is driving and crashes the vehicle through a fence and Zayn (who is hanging on to the back) is thrown from the lawnmower injuring his arm. Advise Zayn as to whether he can bring a claim for negligence against Liam, and consider whether Liam has any defences to the claim. This is a question focusing on the basics of establishing a claim in negligence and potential defences to a claim in negligence. ● Establish a duty of care - drivers are one of the accepted classes of defendants who owe a duty to others around them (particularly their passengers), students may work through establishing the duty of care (mentioning Donoghue v Stevenson and Lord Atkin’s “neighbour principle” and the 3 stage test from Lord Bridge in Caparo v Dickman): ○ it is reasonably foreseeable that Liam’s poor driving will cause harm to his passenger Zayn ○ proximity of Zayn - he is a passenger, so is geographically proximate ○ it is fair, just and reasonable to impose a duty of care on drivers for the general protection of the public. ● Standard of care - the standard of the “reasonable lawnmower driver”, consider relevant factors: ○ Inexperience is irrelevant - Nettleship v Weston (learner driver crashed car, held to the standard of the reasonable driver) ○ Students may note that a getaway is not an emergency situation, which might have mitigated the standard of care Watt v Hertfordshire CC. ● Breach of duty - clear breach of duty here. Students may mention the 4 factors in Bolton v Stone (Likelihood of harm, seriousness of harm, cost/practicalities of prevention, social usefulness of D’s activities). ● Causation & Remoteness - clear causation & damage not too remote: ○ “but for” Liam’s poor driving, Zayn would not have been injured Barnett v Chelsea & Kensington HMC. ○ The Wagon Mound 3 characteristics for remoteness of damage (kind/type of damage foreseeable, manner of infliction of damage & extent of damage do not need to be foreseeable as long as some harm is foreseeable, it’s not necessary to foresee the precise manner of infliction of damage or its full extent) ● Defences: ○ Illegality/Ex Turpi Causa Non Oritur Actio – Joyce v O’Brien is exactly on point (also Smith v Stratton). Liam & Zayn were committing a burglary at the time of the accident (the getaway is part of the crime). Also Ashton v Turner and Pitts v Hunt. Complete defence to negligence. ○ Consent/Volenti Non Fit Injuria - Morris v Murray is exactly on point: ■ Knowledge of the risk - Zayn had clear knowledge of the risk (Smith v Baker or Morris v Murray) ■ Consent freely & voluntarily given - Zayn’s consent can be implied by getting on to the back of the lawnmower (Ratcliff v Harper Adams College) ○ Contributory negligence - Froom v Butcher - partial defence, reduces Zayn’s damages for “hanging on to the back” – acknowledges Zayn’s own responsibility for injuries. ○ Limitation Act 1980 - no mention in the facts, students may refer to the 3 year limitation period for negligence claims. ● Conclusion - Zayn can claim in negligence against Liam, but Liam may be able to argue the complete defence of illegality, possibly consent, or alternatively the partial defence of contributory negligence. 15. Thor decides to get a tattoo to celebrate his latest victory. He visits Hawkeye who has a shop on his local high street and requests a hammer tattoo on his arm. Hawkeye sterilises his needles, follows official advice and has a tattoo licence from the local council, however Thor experiences complications with the tattoo, suffering blood poisoning. Advise Thor as to whether he can bring a claim in negligence against Hawkeye. This is a question focusing on the basics of establishing negligence, with a focus on the question of the standard of care. Students are expected to establish all elements of negligence but with a focus on the standard of care as the main issue. The question specifically asks about negligence, so ignore any contractual claim. ● Establish a duty of care – tattoo artist & customer is not an established relationship, although is a provider of a service and their customer. Students should work through establishing the duty of care (mentioning Donoghue v Stevenson and Lord Atkin’s “neighbour principle” and the 3 stage test from Lord Bridge in Caparo v Dickman): ○ it is reasonably foreseeable that Hawkeye’s poor tattooing skills will cause harm to his customer Thor ○ proximity of Thor - he is a customer in his shop, so is geographically proximate & also business relationship is one of proximity. ○ it is fair, just and reasonable to impose a duty of care on tattoo artists for the general protection of the public. ● Standard of care - the standard of the “reasonable man”. Consider relevant factors: ○ Mental characteristics, intoxication & inexperience do not apply here. ○ Age is irrelevant on the facts, as is physical disability & acting in an emergency. ○ The key factor is the special skill or competence. ○ Consider the Bolam Test – Hawkeye must be considered against the standard of “the ordinary, skilled person exercising or professing to have a particular skill” – eg. the ordinary, skilled tattoo artist. ○ Phillips v William Whiteley is on point here – the standard of the reasonable jeweller not the reasonable surgeon. So judge Hawkeye by the standard of the reasonable tattoo artist, not the reasonable surgeon. ○ NB. Standard of the reasonable professional, not the perfect professional! ● Breach of duty – no obvious evidence of a breach of duty here. Students should mention the 4 factors in Bolton v Stone (Likelihood of harm, seriousness of harm, cost/practicalities of prevention, social usefulness of D’s activities). By following sensible rules (eg. sterilising needles & following advice) & taking precautions, not clear that breach of duty. ● Causation & Remoteness – if can establish a breach of duty, then factual causation is clear & damage not too remote: ○ “but for” Hawkeye’s poor tattooing, Thor would not have been injured or suffered loss: Barnett v Chelsea & Kensington HMC. ○ The Wagon Mound 3 characteristics for remoteness of damage (kind/type of damage foreseeable, manner of infliction of damage & extent of damage do not need to be foreseeable as long as some harm is foreseeable, it’s not necessary to foresee the precise manner of infliction of damage or its full extent)  Conclusion: Seems no negligence as can’t prove breach of duty.  If there was a claim, then Thor could claim for personal injuries & any consequential losses flowing from those injuries.