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You are employed in a London law firm. Your client is Mr Usain Smith. Over the last couple of months things have not gone well for him and a number of serious events have taken place, for which he needs legal advice.

Unit Tort Law

Level 5 30 Credits

Proposed Assignment

You are employed in a London law firm. Your client is Mr Usain Smith. Over the last couple of months things have not gone well for him and a number of serious events have taken place, for which he needs legal advice. He has sent you a letter explaining the range of problems and you need to prepare for a forthcoming meeting with Mr Smith.

In preparation for the meeting make detailed structured notes using relevant cases and statutory provisions, where needed.

Usain’s letter

Dear Sir/Madam

I own and run a laundrette in South London. Until recently I had three employees: Amber, Gordon and Delphine, who were new to the job and employed for only five weeks.

Being relatively inexperienced, Delphine overloaded one of the dry-cleaning machines with garments and instead of filling it with a solution for dry cleaning fabrics, she filled it with a solution we use for maintaining and cleaning the machine. This caused a fire in the laundrette.

I immediately called the local fire brigade and managed to get Ella, a customer in the laundrette at the time, Delphine and Gordon, out of the laundrette. Gordon was uninjured but Delphine suffered second-degree burns. Ella had minor burns on her feet.

Amber was still inside the laundrette and in order to rescue her, I went back inside through the flames. Gordon saw me taking this action and had a severe psychological shock and collapsed at the scene.

Mikella, another customer, was on her way to the laundrette and, having also witnessed me going into the laundrette to rescue Amber, suffered a nervous shock.

The fire brigade attended the scene 20 minutes after I made the phone call but did not have the correct length of water hose and was unable to extinguish the fire. However, they managed to rescue Amber and I from the laundrette.

The fire caused significant damage. It destroyed all the garments in the laundrette belonging to different customers, all the equipment and the interior of the premises was blackened with smoke damage.

Delphine was taken to the local hospital for emergency treatment. The doctor that attended to her was recently qualified and due to inexperience, administered the wrong treatment.

This caused Delphine’s condition to deteriorate and she suffered cardiac arrest and died.

Delphine’s husband Fred was devastated by her death. On leaving the hospital, he saw me and in anger punched me in the face, breaking my nose.

In addition to these problems I then received a letter signed by the owners of the other businesses in the same street as the laundrette. They stated that the state of the laundrette is a disturbing sight; that it had affected their trade and unless I took immediate steps to repair it and compensate them for their loss, they were going to bring a claim against me.

One of the neighbouring shops, the printing office of a local newspaper, published an article in yesterday’s edition of the paper, blaming me for the accident. The headline of the article read:

“This is what happens when incompetent people operate a business”

The article was accompanied by a photograph of the fire damaged laundrette and me. I am devastated and need your advice.

Tasks

  1. In preparation for the meeting with Mr Smith using relevant case law and statutory provisions, you need to produce a file of notes. In the file you must:
  • Analyse the aims of tortious liability AC 1.1
  • Analyse main examples of torts, their essential components, defences and remedies AC 1.2
  • Appraise the rules for prevention of harassment and intentional harms AC 1.3

2. From Mr Smith’s letter you are clear that he showed a duty of care to his staff and customers.

  • Assess when a duty of care will be imposed AC 2.1
  • Assess the consequences of third parties’ interventions AC 2.2
  • Illustrate circumstances when psychiatric harm can be compensated AC 2.3 For a Merit grade you must:
    • Analyse the factors that may render damages ‘too remote’ 2M1
    • Analyse the policy reasons behind limitations of recovery for psychiatric harms 2M2 For a Distinction grade you must:
    • Assess the application of public policy in limiting the scope of duty of care 2D1

3. Mr Smith is also concerned about his liability. In your file notes you need to:

  • Distinguish between primary and vicarious liability AC 3.1
  • Explain employers duties to provide safe system and place of work AC 3.2
  • Examine occupiers’ duties to visitors and non-visitors AC 3.3

4. In order to address the issues posed by local businesses and the article in the local paper you need to:

  • Distinguish between private and public nuisance claims AC 4.1
  • Compare and contrast effective and ineffective defences AC 4.2
  • Appraise the rule in Rylands v Fletcher AC 4.3
  • Define libel and slander AC 5.1
  • Assess the conditions for a claim in defamation AC 5.2
    • Evaluate the utility of available remedies AC 5.3

For Merit grade you also need to:

  • Assess the meaning and need of fault in nuisance claims 4M1 For a Distinction grade your file of notes must also include:
    • An examination of the tension between freedom of speech and protection of reputation. 5D1
  • An analysis the prohibition of recovery for pure economic loss 2D2

Guidelines for assessors

The assignments submitted by learners must achieve the learning outcomes and meet the standards specified by the assessment criteria for the unit. To achieve a merit or distinction grade, the learners must demonstrate that they have achieved all the criteria set for these grades. Where work for the pass standard is marginal, assessors can take account of any extension work completed by the learners. The suggested evidence listed below is how learners can demonstrate that they have met the required standards.

 

TASK

ASSESSMENT CRITERIA

SUGGESTED EVIDENCE

All

 

Learners must ensure the file of notes is organised, comprehensive with relevant references to case law and statutory provisions. In their work learners must take account of each command verb listed in the assessment

criteria.

1.

LO1 AC 1.1, 1,2, 1,3

The case in question involves a number of claims. By identifying each potential claim and the parties to it, learners will demonstrate that they understand the nature and purpose of liability in tort.

Smith v Fred Trespass to the person – difference between assault and battery.

Definition of battery

Defences - consent, lawfulness, self-defence, contributory negligence, necessity.

Remedies – damages, injunction

2

LO2 2.1; 2M2, 2D1

Smith v Fire Brigade. Claim in negligence, failure by the fire brigade to extinguish the fire.

Did the fire brigade owe duty of care to Mr Smith?

The significance policy plays in imposing a duty of care on public bodies, such as the fire services.

 

LO2 2.3, 2.1, 2,2 2M1, 2M2

Claim 2 – Gordon v Smith and Mikella v Smith Psychiatric injury claims

Define psychiatric injury – McLoughlin v O’Brian Bourhill v Young

Differentiate between primary and secondary victim. Apply Alcock v Chief Constable of South Yorkshire Police Apply the test to primary and secondary victims

Claim 3 Delphine v The Hospital Duty of care to Delphine Standard of care imposed on professionals

Breach – the Bolam test

Medical Negligence- material contribution to the death by the doctor

3

LO3 3.1, 3.2

Claim 4 – Delphine v Smith Discussion of employer’s liability; duty to provide a safe place and safe system of work.

Breach of the duty – strict liability or duty to take reasonable care?

Causation – did the doctor’s negligence break the chain of causation? Is the death too remote consequence of the breach?

Defences- discussion of contributory negligence.

 

 

LO 3 3.3

Claim 5 Ella v Smith Occupiers liability – to whom does the occupier owe duty?

Is Ella a visitor or a trespasser?

S 2(2) OLA 1957- the standard of duty Breach – Tomlinson v Congleton

 

 

Claim 6 Customers (owners of damaged garments) v Smith Duty of Care

Type of loss – pure economic loss?

Differentiate between pure economic loss caused as a result of an act and as a result of negligent misstatement.

Apply the law on pure economic loss as a result of a negligent act- Spartan Steel

4

LO5 5.1, 5.2, 5.3; 5D1,

Smith v Neighbours Defamation; Difference between libel and slander; conditions for claims: defamatory statement of sufficient seriousness, issues of innuendos, reference to the claimant, publication rules

 Defences – truth, honest opinion, absolute and qualified privilege, public interest, apology; statutory defence – Defamation Act 1996 – innocent publication.

Remedies – damages, injunction, remedies under Defamation Act 2013.

Appropriateness of the rules, impact of the Human Rights Act, remedy only for the wealthy or privileged?; tension between free speech and the need to protect reputation of individuals.

 

LO4 4.1, 4.2, 4.3 4M1, 2D2

Neighbours v Smith Claim in nuisance

Stablish the difference between private and public nuisance Consider the scope of Ryland v Fletcher.

Defences and remedies for nuisance claims, public issues of protection, tension between public and private rights.

 


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