Your answers must not exceed 2000 words for the whole paper.
You are recommended to devote no more than 1,000 words to the total answer for each section.
Candidates must attempt TWO questions, the
ONE question from Section A and ONE from Section B
M3402 Law of Tort
Answer both part (a) and part (b)
1. Brightelm NHS Trust have asked for your advice on the following two cases:
(a) Mrs Wood is seeking damages for a recognised psychiatric illness which she developed after the negligent treatment of her five-year old daughter, Sarah. Sarah had tripped and fallen over in the playground at school and been unconscious for a few minutes. Mrs Wood
ought her to the Accident and Emergency Department. Sarah had a head scan but Dr Green failed to see that she had had a bleed on her
ain and discharged her. Sarah complained of headaches and became increasingly incoherent. Three days later, after a conversation with her GP, Mrs Wood took Sarah back to the hospital. The scan was reviewed and the bleed identified which required urgent surgery. Waiting for a theatre to become available, ten hours later Sarah suffered a further bleed from which she died. Advise, drawing from appropriate authority, Brightelm NHS Trust whether they owe Mrs Wood a duty of care.
(b) Mr and Mrs Skye are seeking damages for a recognised psychiatric illness arising from the events su
ounding the birth of their daughter, Isla. The labour progressed very slowly but the midwife, Aran, reassured them that all was well because the monitor showed that the baby’s heartbeat was strong. When the consultant a
ived after 16 hours of labour she saw that the monitor was inco
ectly fitted and it became apparent that the baby’s heart was not beating. When Isla was born she was not
eathing and it was later established that she had suffered severe
ain damage from oxygen deprivation during birth. Given the differences in the heartbeat of an adult and a baby it should have been obvious to a competent midwife that the monitor was inco
ectly fitted. Advise, drawing from appropriate authority, Brightelm NHS Trust whether they owe Mr and Mrs Skye a duty of care.
M3402 Law of Tort
1. Explain and discuss the extent to which recent Supreme Court cases such as James-Bowen v Commissioner of the Police of the Metropolis  UKSC 40 and Robinson v Chief Constable of West Yorkshire Police  UKSC 4 provide clear guidance on the nature and function of duty of care in negligence.
This is the assessment guidance that you can use to identify the required structure to complete the essay questions
M XXXXXXXXXXThe Law of Tort
You have just started as a trainee in the personal injury department of a law firm. One of the senior partners has asked you to write a memo in preparation for a client meeting later that day. As the meeting is taking place soon you will only have an hour to write this memo, which is not enough time to ask any of your colleagues for help or consult any legal materials. Therefore, you are going to have to do this from memory. The partner gave you the following summary of the situation:
‘Our client, Edward, is 17 and had just passed his test when he was involved in a car accident, which another driver (Geoffrey) has admitted to causing by his negligence. Edward suffered abdominal injuries in the accident that required an operation. Edward consented to have an operation but said he had recently decided to join a religious group which prohibits its followers from receiving blood in medical treatment. He said ‘no blood’ before lapsing into unconsciousness. Unable to speak with his parents about Edward’s views, the surgeon, Mr Bates, gave Edward a transfusion of a pint of blood, without which Edward would have died. Mr Bates then decided to attempt a recently developed technique which he had
iefly read about the day before in the latest edition of the medical journal, Gut Repair. Four hours into the operation, Mr Bates realised that he didn’t fully understand the new procedure and decided to resort to the conventional technique, which is the one he had mentioned to Edward while he was
iefly conscious. A few minutes later Edward suffered a cardiac a
est and will be left with permanent
ain damage. Had Mr Bates adopted the conventional technique from the outset, Edward stood a 40% chance of making a full recovery’.
The senior partner also made the following observations:
· Remind me of the essential elements for a successful claim in negligence.
· Old cases (e.g. Donoghue and Anns) probably are not relevant. So, stick to more recent cases - it is not as though we are dealing with a novel situation.
· Of course, the surgeon was a professional (unlike Geoffrey) and our client’s chances of survival were not great anyway. So that will need to be addressed.
· Has any battery been committed?
You are required to write the text of a memorandum discussing the tortious issues which arise in the scenario involving Edward being sure to mention any relevant case law.
End of Pape
Indicative guidance for this question – what your plan might have contained - a good quality full answer would have built upon these points, supporting arguments with discussion of case law. It is vital that you consider relevant case law in depth and apply the law to the facts. Which cases you will need to consider will depend upon the point you wish to make. We do not, therefore, list below all of those that may be relevant to your answer. Part of the exercise is for you to make a judgement about which cases best support the argument you wish to make
In order to attain at least a pass mark you would be expected to:
1) Identify that in order for a claim in negligence to be successful the alleged tortfeasor must have owed the claimant a duty of care, which was
eached and that
each caused the harm/damage suffered by the claimant. A better answer would involve clear recognition that both legal and factual causation are required as well as the absence of a defence.
2) Establish that Mr Bates owed Edward a duty of care. In the context of the question detailed discussion of the three-stage test in Caparo is not central. Discussion of very early cases such as Donoghue are not relevant in the context of the question (nor is mention of ove
uled cases such as Anns). Any discussion of whether or not Geoffrey was negligent was also i
elevant as this has been admitted.
3) Discuss whether or not Mr Bates
eached his duty of care, with reference to some relevant case law.
4) Discuss the impact that Edward only had a 40% chance of surviving with reference to some relevant case law.
Stronger answers went beyond the above core expectations and, in addition, discussed matters such as the following in greater detail:
5) Geoffrey remains liable unless novus actus interveniens (legal causation).
6) Mr Bates’ duty based on precedent not three-stage test (Caparo).
7) Discussed in more depth the Bolam/Bolitho test as applied to Mr Bates.
8) ‘But-For test’ not satisfied with less than 50% chance (Barnett/Wilshe
9) Discussion of potential battery – consent, necessity
10) Discussion of the importance of obtaining informed consent (Montgomery)
Very strong answers also considered contributory negligence (and some vicarious liability, although this was not expected as the topic isn’t covered until the Spring term).
In terms of actual performance, the best answers (marks in the 60s and above) engaged well with the elements of the question, drew upon appropriate case law and engaged with and applied to this scenario the legal reasoning of cases. Other answers co
ectly identified the tortious areas but didn’t develop them as fully – these would have slipped into the lower marking bands. Some missed one or more of the tortious areas or key cases, thereby reducing the scope for potential marks, and/or engaged in discussion of matters which were not relevant/central.
A few of the weaker answers were very muddled about the legal issues. A few candidates wrote at significant length but the content contained virtually nothing other than a repetition of the facts and very general observations without legal content.
A lot of the students who received fail marks demonstrated little knowledge of the law and/or a lack of engagement with primary sources. In that latter context, if you say something relevant but do not support it with case authority then it counts for little more than your own opinion – when dealing with the law of tort, we need to know where you are getting the law from, so an answer to this question with few/no cases discussed isn’t going to achieve many marks.
A few answers threw in what seemed like more or less everything that had been revised, i
espective of whether or not this had relevance to the question. It is very difficult to convince the markers that you really understand tort if you take this approach.
Another reason for some low marks was writing far too little. There is no set expected length for an answer - different students write more or less concisely, have larger or small handwriting etc. – but as a rule of thumb, those students who received a high mark needed around three to four or more sides of substantive material (i.e. discounting repetition of the facts, i
elevant material and suchlike) to do justice to this question.