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A-level

Law

LAW04 / Unit 4 Criminal Law (Offences against Property) or Tort, and

Concepts of Law

Report on the Examination

(2160)

June 2013

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Further copies of this Report are available from aqa.org.uk

Copyright © 2013 AQA and its licensors. All rights reserved.

AQA retains the copyright on all its publications. However, registered schools/colleges for AQA are permitted to copy material from this booklet for their own internal use, with the following important exception: AQA cannot give permission to schools/colleges to photocopy any material that is acknowledged to a third party even for internal use within the centre.

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Unit 1 (LAW04) June 2013

General

As was the case with the 2012 LAW04 examination, many students performed well on this Unit. There were many good responses, demonstrating thorough learning and careful preparation. Students generally devoted sufficient time to both the substantive law and concepts sections, although, as has been the case in earlier examinations, many students attempt their Concepts question first, spend far too much time on it and fail to leave sufficient time for the rest of the paper. Weaker responses to the substantive law questions continued to be related to the devotion of

excessive time and detail to unimportant aspects of the problems set and the failure to adequately read and/or reflect on the facts of the problems. This then lead students to write responses with inaccurate explanations and analyses. In addition, students often fail to display a precise knowledge of the wording of relevant statutes, especially in relation to the Theft Act 1968, the Fraud Act 2006 and the Occupiers’ Liability Act 1984.

SECTION A (OFFENCES AGAINST PROPERTY) Scenario 1

Question 01

Students were required to address three areas in relation to Tom’s possible criminal liability for property offences, (i) theft in relation to the letter (ii) blackmail in relation to what he said to Enrique and (iii) the possible defence of intoxication in relation to both offences.

The theft issues: many students were able to provide competent explanations and application of the various elements, although few were able to identify the more subtle aspects. In relation to the requirement of ‘appropriation’, most students argued that Tom appropriated the letter (s.3Theft Act 1968), by taking possession of and reading it, thereby failing to appreciate that any appropriation must be dishonest. When Tom picked up the letter and read it, he had not formed dishonest intent – he only became dishonest after reading it, with the result that the dishonest appropriation

occurred only at the later point when he offered to sell it to Enrique (in this connection, students should be aware of the second part of s.3, which provides that if D comes by property without stealing it, an appropriation occurs if he later assumes a right to it by keeping or dealing with it as owner).

Most students correctly identified the letter as personal property, although many also failed to explain that its contents did not constitute property for the purposes of theft (Oxford v Moss). The letter was also property ‘belonging to another’ (Enrique) since, although, at the time that Tom picked it up, it was not within his physical control, Enrique still retained a ‘proprietary right or interest’ in it (s.5(1)Theft Act 1968). Better students also pointed out that Enrique had not lost this right by temporarily losing the letter and that he had not lost it through abandonment, which

requires an intention to abandon.

In relation to dishonesty, many students correctly explained and applied the Ghosh test. Some students explained the circumstances in which, under s.2(1) Theft Act 1968, a person is deemed not to be dishonest but, given that none of these circumstances occurred in the problem, no credit was gained by this material. Unfortunately, the issue of intention to permanently deprive was generally addressed rather weakly. Many students merely argued that Tom possessed this intent

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since he did not mean Enrique to get the letter back despite the fact that this was not the case and that Tom’s actual intent was that Enrique would get it back but only on condition of paying for it. This situation is covered by the first part of s.6 Theft Act 1968, which provides that, even if the defendant does not mean the victim to permanently lose the property in question, he is deemed to possess the intention to permanently deprive if his intention is to treat the property as ‘his own to dispose regardless of the other’s rights’. Some students referred to the second part of s.6, to the effect that a borrowing of property gives rise to such an intention if it amounts to ‘an outright taking or disposal’, but gained no credit since there was no borrowing of the letter in the problem.

The blackmail issues: most students were able to show understanding of at least some of the requirements of s.21 Theft Act 1968. There was clearly a demand for payment of the £10 000 by Tom, as students generally pointed out. Whether the demand was made with menaces would depend on whether the reasonable man ‘of normal stability and courage’ would give in to the demand, and many students correctly argued that he probably would, given that Enrique had a reputation for ‘clean living’ and that the public disclosure of his conviction for rape would ruin his career. The further issue was whether Tom’s demand with menaces was ‘unwarranted’, an aspect which very few students understood, with the result that the highest marks were rarely achieved. According to s. 21(1), a demand is unwarranted unless the defendant makes it in the belief (a) that he has reasonable grounds for making the demand, and (b) that the use of menaces is a proper means of reinforcing the demand. It was difficult to see that Tom would have reasonable grounds for demanding payment of money. In order to decide whether Tom believed that the use of the menaces was proper, it had to be asked whether he believed that his threat to sell the details of his conviction to a newspaper was morally or socially acceptable according to the general standards of society (see for example, Harvey). This was obviously a question of fact but, on the facts of the scenario, it would be unlikely that Tom had this belief. Many students were able to explain and apply the requirement of s.21 that the demand is made with ‘a view to gain for himself or another or with intent to cause loss to another’.

NB Most students incorrectly stated that, in order for the demand with menaces to be warranted, the defendant must have reasonable grounds for making the demand and that the use of menaces

are a proper means of enforcing the demand – what matters is whether the defendant believes

that these circumstances are correct. Many students also incorrectly referred to ‘reasonable’, as distinct from, ‘proper’, means of enforcing the demand.

The defence of intoxication: students were required to consider the possible defence of intoxication in relation to Tom’s liability for theft and blackmail. In order to achieve top marks, it was necessary to explain the distinctions between voluntary and involuntary intoxication, and between crimes of specific and basic intent, and that voluntary intoxication is a defence to only crimes of specific, and not basic, intent. Unfortunately, very few students provided a definition of ‘specific intent’ or ‘basic intent’. On the other hand, many were able to identify the offences of theft and blackmail as offences of specific intent (without explaining why this is so), and that intoxication only provides a defence to such offences where it prevents the formation of mens rea. Such students gained high marks. On the facts of the problem, it was obvious that Tom would have been able to form the mens rea since, despite drinking ‘several vodkas’, he was able to formulate his dishonest plan regarding the letter, but many students failed to analyse the facts on this aspect.

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Question 02

Students were required to address three areas in relation to George’s criminal liability for property offences (i) fraud by false representation (ii) burglary and (iii) basic and aggravated criminal damage.

The fraud by false representation issues: in general, students were able to explain and apply in detail the elements of this offence and thus gain high marks. The particular points which arose were that George made an express representation of fact (that he was qualified to carry out electrical work) and that the representation was ‘false’ since it was ‘untrue or misleading’ and George knew that it was (s.2(2) Fraud Act 2006). The representation was also obviously dishonest on the Ghosh rules and he intended to make a gain for himself or another or to cause to another or to expose another to a risk of loss. Better students were able to gain credit by explaining the statutory meaning of ‘gain’ and ‘loss’, eg that these relate to ‘gain’ and ‘loss’ only ‘in money or other property’ (s.5(2) Fraud Act).

NB As has been pointed out in previous LAW04 Reports, students will gain the highest marks on this topic only if they display a reasonable understanding of the actual wording of the relevant provisions.

The burglary issues: students generally were able to provide competent, and many good,

responses to this aspect of the question. It was obviously necessary to explain the requirements of ‘entry’, ‘trespasser’, and ‘building’. On the facts of the problem, George was clearly a trespasser in Rosa’s house on Wednesday since, although, she had given him a key, she clearly barred him from entering it on that day. George also possessed the mens rea of trespass since he obviously appreciated that he was trespassing.

Students who addressed the above issues then correctly argued that George was guilty of burglary on the basis of s.9(1)(b) Theft Act 1968 since, having entered as a trespasser, he

committed GBH when he ‘viciously pushed Brenda’, causing her to suffer a ‘serious head wound’. Some students also received credit for correctly pointing out that George’s commission of criminal damage in Rosa’s kitchen did not give rise to liability under s.9(1)(a) Theft Act since he did not form the intention to commit criminal damage before entry but only following Brenda’s complaint regarding his work.

The criminal damage issues: the question required students to consider whether George was liable for basic and aggravated criminal damage. Students were generally able to accurately explain the elements of basic criminal damage contained in s.1(1) Criminal Damage Act 1971 (CDA). Unfortunately, many students failed to explain that there were two incidents of such

damage in the problem. The first such incident was George’s cracking of the cover of the electrical socket, the second, the exposure of the socket wiring through tapping it with a hammer. Students received credit for discussing the first incident but very few gained the highest marks through failing to recognise that it was unlikely that George possessed intention or recklessness as to the cracking at the time it occurred since George only realised later that hehad cracked the cover. On the other hand, when George caused the further damage by tapping the cover, he did realise that the cover was cracked, with the result that it was clearly arguable that he was at least subjectively reckless that further damage would occur. Many students correctly explained the elements of aggravated criminal damage and went on to argue that George was reckless as to the endangering of life by the exposed wiring. Good students also explained that the risk of danger to life must be caused by the criminal damage itself, rather than the act which caused it (Steer) and that all that was required was a possible risk to life without any danger in fact (it was thus irrelevant to liability whether anyone was harmed by the exposed wiring).

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6 of 17 NB In order for liability for aggravated criminal damage to arise, three elements must

simultaneously be present, basic criminal damage, intention or recklessness as to any damage and intention or recklessness as to the endangering of life thereby. On the facts of the problem, it was the further damage (the exposed wiring) which provided the first element since, at the time of that damage, George was arguably reckless as to damage and as to the endangering of life thereby. On the other hand, some students relied on the initial act of cracking the socket cover as providing the first element of the aggravated offence. This was inaccurate since that initial damage occurred before the possible risk to life occurred (when the live wires were exposed following George tapping the cover). On the other hand, better students correctly recognised the importance of distinguishing the two separate incidents of damage.

Scenario 2

Question 03

Students were required to address three areas in relation to Stavros’s criminal liability for property offences (i) burglary (ii) theft and robbery and (iii) the defence of duress.

The burglary issues: students generally were able to explain and illustrate the meaning of the important aspects of this offence, ie ‘entry’, ‘trespasser’, and ‘building’. The trespass requirement was constituted by virtue of the Jones & Smith principle, that Stavros knowingly exceeded the implied permission to enter enjoyed by any member of the public by entering with the intention to commit theft. Many students identified this principle, who also then correctly argued that Stavros was guilty of burglary on the basis of both s.9(1)(a) and s.9(1)(b) Theft Act 1968, the former since he possessed conditional intent to steal before he entered the society (which is sufficient for burglary but not theft), and the latter since he committed theft of the money (but not GBH since Bob was ‘not hurt’) after entry.

NB – as has been pointed out in earlier examination reports, students should be very careful in explaining the differences between s.9(1)(a) and s.9(1)(b). Under the former, intention to commit

(but not the actual commission of) the ulterior offences (theft, GBH, criminal damage) is required

before entry whereas, under s.9(1)(b), actual commission of theft and/or GBH after entry is required. Many students failed to clearly explain these points, eg by referring only to D’s intention to commit theft in relation to s.9(1)(b) and thus failed to gain the highest marks.

The theft and robbery issues: many students gave reasonable explanations of the actus reus and mens rea elements of theft and robbery. Stavros’s liability for theft was fairly obvious and students who explained and applied the elements in detail scored good marks. On the other hand, some failed to explain the principle that a taking of possession of property, which is then lost, is sufficient to establish both an appropriation and an intention to permanently to deprive. In relation to robbery, the crucial issues were the meaning of ‘force’ and the requirements that force must be used ‘immediately before or at the time of the theft’ and ‘in order to’ steal. Many students correctly argued that Stavros used force, firstly, by snatching the money from Bob, the customer, and secondly, by pushing Bob away when he tried to stop Stavros leaving the building. The former incident of force clearly occurred at the time of the theft as did the latter on the basis of the ‘continuing appropriation’ principle (Hale), and better students said this. Many students also argued that Stavros used force ‘in order to steal’, although this was more arguable when Stavros snatched the money rather than when he pushed Bob away since it could be said that the latter force was used to escape rather than to steal.

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7 of 17 The defence of duress: many students addressed the issues relating to duress extremely well and thus gained good marks. It was clearly arguable that Stavros reasonably believed that Mario had threatened death or serious personal injury (‘torture’) to Stavros’s elderly mother, a person for whom he reasonably felt responsible. Many students, however, failed to state that, since the landmark decision in Hasan, the belief must be both honest and reasonable. On the other hand, many correctly pointed out that, in order for the defence to succeed, a person of reasonable firmness would have felt compelled to comply with the threat and this was clearly arguable, given that Mario clearly had a history of violent activities. The success of the defence would also depend on Stavros not having a reasonable opportunity to enable his mother to escape the consequences of the threat. Many students accurately pointed out that the scenario was not entirely clear on this point, some arguing that, since Mario was ‘following’ him, he did not have such an opportunity, while others said that, since the theft occurred the day after the threat was made Stavros had time to contact the police. Both of these arguments were credited.

Many students correctly argued that Stavros’s voluntary association with a violent gang prevented him from relying on the defence (Sharp/Hasan), although better students also correctly pointed out that, since he seemed to have ceased to have contact with the gang before the threat was made, the defence might be applicable. The other crucial aspect of the defence is that it applies only when the defendant believes on reasonable grounds that the threat will be carried out ‘immediately or almost immediately’. It was not entirely clear on the facts of the scenario whether this

requirement was satisfied, as many students pointed out.

Question 04

Students were required to address three areas (i) criminal damage and/or theft in relation to the wall/bricks (ii) fraud by false representation and (iii) obtaining services by a dishonest act.

The criminal damage/theft issues: the criminal damages were, firstly, whether Dave had committed the offence of basic criminal damage arising under s.1(2) Criminal Damage Act 1971 and, secondly, whether he could rely on the defence of lawful excuse arising under s.5(2)(b) of the Act. There were two possible acts of criminal damage in the scenario, either or both of which were creditworthy. Most students relied on damage in the form of the cracking of the bricks which Dave had dropped to the foot of the wall but it was also arguable that Dave had also committed damage by simply removing the bricks from the top of the wall so as to affect its overall integrity. In relation to the mens rea of the offence, Dave was arguably reckless as to the cracking of the bricks but intentionally caused their removal. Many students went on to consider the defence of lawful excuse. What s.5(2)(b) requires for the success of this defence is that the defendant destroys or damages property belonging to another in order to protect property, whether belonging to himself or another, and that he believes that the property is in immediate need of protection and that the means adopted for that protection are reasonable in the circumstances.

The majority of students who identified the defence correctly explained that it was arguable that Dave had acted in order to protect his car from falling bricks and that he believed that his car was in immediate need of protection, although, as better students pointed out, it was necessary to consider whether Dave could have found a suitable alternative place in which to park his car. Hardly any student identified the other element of s.5(2)(b), namely, whether it was possible to argue that Dave believed that the removal and/or the cracking of the bricks was a reasonable means of protection, although a good discussion of criminal damage and the other aspects of the lawful excuse defence merited high marks.

Students could also gain credit by considering Dave’s possible liability for theft by cracking the bricks, either as an alternative or in addition to criminal damage. It was unlikely on the facts of the scenario that theft would have been committed since Dave was not acting dishonestly and,

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moreover, since he probably did not intend to destroy the bricks and, therefore, did not possess the intention to permanently deprive.

NB In relation to the defence of lawful excuse to criminal damage, students should bear in mind that the issue is not whether property is in immediate need of protection nor whether the means adopted are reasonable, but whether the defendant believes that these circumstances exist.

The fraud by false representation issues: the majority of students were able to explain and apply the main elements of the offence arising under s.2 Fraud Act 2006, ie the meaning of ‘representation’, ‘false’, dishonesty and ‘the intention to make a gain for himself or another or to cause a loss to another or to expose another to a risk of loss’. The issues requiring specific attention were that Dave had made an ‘implied’ representation that he was lawfully entitled to the reduced price merely by asking for ‘the over 60s service’. Moreover, the gain which Dave intended to make was in the form of ‘keeping what one has’ (s.5(2)), ie half the full price. Alternatively, the loss intended by Dave was, obviously, that Jake would not receive the full price.

The obtaining services issues: the essential elements of the offence of obtaining services by a dishonest act, arising under s.11 Fraud Act 2006, are that (i) services are obtained by a dishonest act, (ii) they are made available on the basis of being paid for, (iii) the defendant obtains them without payment or without payment in full, (iv) when he obtains them, he knows that they are (or might be) being made available on the basis of payment, but intends that payment will not be made or will not be made in full. Students generally were able to identify the main elements of the

offence, although only a few possessed a reasonably accurate understanding of the actual wording of s.11, many often referring to the wording of the offence of making off without payment.

Moreover, responses displayed a failure to appreciate the requirement that the services must be obtained by a dishonest act, ie there must be a causal link between the act of dishonesty and the obtaining of the services. This requirement was, however, present in the scenario since Jake’s dishonest act which led to his obtaining the reduced-price service was his request for the service, knowing that he was not entitled to it.

SECTION B (TORT) Scenario 3

Question 05

Students were required to consider the possible claims (i) of Rick against Andy for private nuisance and under the Rule in Rylands v Fletcher, and (ii) of the motorists against Andy in public

nuisance.

The nuisance claim: the majority of students attempting this question were able to provide an accurate definition of the tort of private nuisance, and to identify factors referred to in the facts of the problem which were relevant in determining whether the noise and fumes generated by Andy’s coach business constituted an unreasonable interference with Rick’s use of his property. As many students successfully argued, the important features were the locality factor (Rick’s house was in ‘a quiet, rural area’), duration (eg the coaches were used on school days and the noise and fumes were ‘persistent’), and the malice/motive factor (following Rick’s complaint, the disturbance increased).

Many students referred to relevant authorities, eg Christie v Davey, Hollywood Silver Fox Farm v Emmett, Halsey v Esso, St Helen’s Smelting v Tipping, Sturges v Bridgeman etc, although few students explained the important philosophy of balancing the conflicting interests of claimant

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and defendant. On the other hand, far more students than in previous papers explained the important remedy of the injunction in nuisance to restrain the continuance of the nuisance either totally or partially. Some students also referred to relevant authorities regarding the grant or refusal of an injunction, eg Kennaway v Thompson and Miller v Jackson.

The public nuisance claim of the motorists: the majority of students attempting this question were able to accurately define public nuisance as an act or state of affairs which materially interferes with the comfort and convenience of life of the public or a section of the public. They went on to explain that a substantial obstruction of a public road, such as that created by Andy’s coaches, constituted such a nuisance on the basis that it substantially interfered with the motorists (a class of persons, or section of the public). On the other hand, an individual member of the public can claim an injunction or damages on the basis of a public nuisance only if he/she can prove ‘special damage’ over and above that suffered by other members of the public and as many students correctly concluded, there was no evidence of such ‘special damage’ suffered by any of the motorists.

The Rylands v Fletcher claim: students were generally able to explain and apply the main elements of the tort (a ‘thing likely to do mischief if it escapes’, accumulation, escape, non-natural user and foreseeability of damage) and whereas many responses in previous examinations tended to resemble a list of requirements, the explanations of the elements were generally more detailed this year. In particular, it was encouraging to see that many students this year were able to recognise the importance placed on the requirement of non-natural use of land by the Transco v Stockport decision and many responses attempted a definition of this term, eg as a use which is ‘extraordinary and unusual’. It was arguable that the accumulation of diesel oil in a large quantity was such a use, although credit was given to any contrary argument.

Many students correctly explained that damage caused by an escape must be reasonably foreseeable, otherwise it will be too remote and irrecoverable (the Cambridge Water case).

NB In relation to the escape requirement, the Court of Appeal has recently decided (in Gore v Stannard 2013) that liability under Rylands v Fletcher will arise only if the thing accumulated

escapes, with the result that, if the thing accumulated, eg oil, catches fire and the fire but not the thing accumulated, escapes, there will be no liability. This decision altered the earlier law on this point and cast doubt on previous cases (eg Mason v Levy Auto parts) which clearly stated that there was a sufficient escape in such circumstances. Students sitting this examination were not expected to know of this recent development but full credit was given to responses which argued that there was no escape (since the fire, but not the oil, had escaped) and to those which assumed that there was a sufficient escape.

Question 06

This question involved three areas (i) the possible liability of Rick to Marco under the

Occupiers’Liability Act 1957 or in the tort of negligence (ii) Dr Jones’s possible liability to Marco under principles of medical negligence and (iii) the possible vicarious liability of Dr Jones’s hospital to Marco.

The liability of Rick to Marco: in relation to Rick’s possible liability under the Occupiers’ Liability Act 1957, students were required to define the terms ‘occupier’ and ‘visitor’ which they were able to do with accuracy. Many students also explained, often in greater detail than was necessary, the meaning of ‘land’ and ‘premises’. The key elements of the question were the nature of the duty owed by the occupier to the visitor, ie the ‘common duty of care’ and whether a breach of this duty had been committed by Rick. Most responses accurately defined the duty as one to take

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purposes for which he is permitted to be there (s. 2(2)). In relation to the possible breach of duty, able students correctly indicated that only reasonable steps are required of the occupier, based upon what a reasonable occupier would do. In this context, it was necessary to consider the rule contained in s.2(3)(b) of the Act that the occupier is entitled to expect that a person ‘in the exercise of a calling will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so’. Many students showed an accurate understanding of this provision and were consequently awarded high marks. The issue with regard to its application to the problem scenario, as many appreciated, was whether the state of the guttering on Rick’s roof was something which fell within the scope of a roofing contractor’s expertise and there were differing views on this point, all of which were credited if supported with reasoning.

NB Students who discussed Rick’s possible liability under general negligence principles rather than under the 1957 Act could gain full credit, but only if the aspects of duty, breach, damage and remoteness were specifically applied to the facts of the scenario, eg by considering whether Rick performed his duty of care merely by appointing an apparently competent person to do the work, and whether Marco failed to take reasonable care for his own safety (ie was contributory negligent) in failing to check the state of the roof guttering.

The liability of Dr Jones to Marco: students were required to explain and apply generally the main principles relating to medical negligence. It was relatively straightforward to establish that Dr Jones owed a duty of care to Marco, his patient, on the basis of the Donoghue v Stevenson

principle of reasonable foreseeability of harm. Thus the main thrust of the question centred on breach of duty by medical professionals. It was possible to produce a competent answer by applying general negligence principles but higher marks could be gained only by referring to various rules specifically dealing with medical negligence. Many students had a sound knowledge of these. In particular, many students explained and applied the ‘Bolam principles’ of the standard of the reasonably competent member of the profession and the general rule that if a doctor acts in accordance with a practice which is followed by the profession, he will not be considered to have acted negligently, even if some doctors follow a different practice.

Fewer students, however, were able to explain the Bolitho qualification on the general and

approved practice principle, ie that such a practice will absolve a doctor from liability for negligence only if the practice can be said to be reasonable, respectable and to have a logical basis. Another important aspect of Dr Jones’s potential liability was that he ‘had only recently qualified’ and many students correctly considered whether inexperience is relevant to the standard of care to be reasonably expected. Many students used Nettleship v Western as authority for the rule that Dr West’s inexperience was no defence and this argument was credited.

Some students also gained credit by referring to the principle put forward by one of the judges in

Wilsher v Essex AHA that the standard of care to be expected from a doctor depends on the post he occupies, with the result that a lower standard care is expected from a doctor holding a junior post than a consultant. Many students also gained credit by briefly explaining and applying the ‘but-for’ test of causation in relation to Dr Jones and by explaining that the harm to Marco was not too remote.

The liability of the hospital to Marco: students were obviously required to explain and apply the principles of vicarious liability to the incident involving Marco and Dr Jones and many students provided good answers. Students correctly concluded that Dr Jones was an employee of the hospital, rather than an independent contractor, utilising tests established in authorities such as

Ready Mix Concrete v Ministry of Pensions and more recent decisions. Students also correctly concluded that Dr Jones was acting in the course of employment, and not acting ‘on a frolic of his own’.

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11 of 17 NB Many students failed to address the liability of the hospital, highlighting the importance for students of reading the questions carefully.

Scenario 4

Question 07

Two issues were raised, the possible liability (i) of Carlos to Sergio for the economic loss caused by his negligent misstatement and (ii) of Drake to Sergio for product liability.

The negligent misstatement issues: many students correctly began by explaining the generally restrictive approach of the law to allowing claims for economic loss in the tort of negligence. One of the main exceptions is a claim for pure economic loss caused by a negligent misstatement. A central feature of the problem was whether Carlos owed a duty of care to Sergio in relation to his giving of advice under the principles as originally established in Hedley Byrne v Heller and as developed in later authorities, in particular Caparo v Dickman. Most students displayed a competent understanding of these principles and many responses were excellent. According to

Hedley Byrne and later authorities, the defendant, D, owes a duty of care to the claimant, C, in the making of a statement, in the absence of a contract, only if there is a ‘special relationship’ between them, or, according to Caparo v Dickman, only if there is a ‘relationship of proximity’ (which has a similar meaning to that of a ‘special relationship’). The main features of special relationship/ proximity are that (i) the maker of the statement, D, possesses some special skill relating to the statement, (ii) D knows that it is highly likely that C, will rely on the statement, (iii) C does rely on it and thereby incurs financial loss, and (iv) it is reasonable for C to rely on it. As regards element (i), students correctly raised the issue whether Carlos, as a student of the history of pottery, was sufficiently skilled to advise on the value of Sergio’s vase, although many students suggested that he might be.

Many students also considered the scenario in Chaudhry v Prabhakar, which suggested that advice given by a friend might give rise to a duty. Requirement (ii) was arguably satisfied since Sergio had asked Carlos to specifically advise him about the value of the vase. Whether it was reasonable for Sergio to rely on Carlos’s advice would depend on all the circumstances. Many responses correctly suggested that it would not normally be reasonable to rely on advice given in a purely social situation. Several students also correctly pointed out that some decisions (eg Hedley Byrne, White v Jones etc) hold that, if the maker of the statement voluntarily assumes

responsibility regarding the making of the statement, rather than staying silent, this supports the existence of a duty of care, and credit was given for this.

In addition to addressing the issue of whether a duty of care arose, students were expected to explain the standard of care required of Carlos (although few did so!) – did he display the care, skill and expertise that would have been displayed by a reasonably competent advisor about pottery, especially given that, as a student of pottery, it could be argued that he was an inexperienced advisor. In relation to the remedy available, it was merely necessary for students to identify that Sergio could recover damages for his loss and that this is one of the areas where economic loss can be recovered in tort although students who addressed the issue of measure of damages received credit.

The product liability issues: students were able to achieve full marks by addressing product liability on the basis either of common law tortious negligence or the Consumer Protection Act 1987.

A treatment on the basis of common law principles obviously required students to explain elements of the duty of care in relation to defective products and breach of duty. The duty is obviously owed

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by the manufacturer of the product (as in Donoghue v Stevenson and Grant v Australian Knitting Mills) on the basis of the principle of reasonable foreseeability and the duty is to take reasonable care in the manufacturing process. The duty is owed to anyone who is foreseeably likely to be physically injured or suffer damage to property as a result of the manufacturer’s negligence, for example, a purchaser of the product (eg Grant v Austrlian Knitting Mills), a consumer or user of the product (eg Donoghue v Stevenson) or any other person who foreseeably incurs damage (eg a member of the public who is hit by a defective wheel which breaks loose from a car). Having explained that, on the facts of the problem, Drake owed a duty of care to Sergio on the ground that it was reasonably foreseeable that any user of a defective bicycle would suffer harm, students then proceeded to consider whether Drake had committed a breach of duty. This would obviously depend on general negligence principles (had they exercised

reasonable care and skill?) and many students correctly discussed the possible application of the various ‘risk factors’, eg the magnitude and likelihood of risk of harm, the cost of taking precautions etc and several good students correctly added that, in view of the difficulty which a claimant may face in proving negligence, the court may be willing to apply the res ipsa loquitur principle and infer from the nature of the defect itself that it could not have occurred without negligence (see eg Grant v Australian Knitting Mills).

Many students also correctly concluded that the damage suffered by Sergio was caused by Drake’s negligence and that it was not too remote. One area, however, which students generally fail to explain is the requirement of damage. The general rule is that a claim in the tort of

negligence will succeed only if the claimant can show that he suffered physical damage as a result of the negligence, either in the form of personal injury (eg a broken arm), or damage to his property (eg a damaged car). On the facts of the problem, Sergio could recover damages for his personal injury and for the damage to property (his watch). Better students were also credited for the

observation that he could not claim for the cost of repairing the bicycle since the law classifies such a claim as one for irrecoverable pure economic loss (see Muirhead v Industrial Tank Specialities

and Murphy v Brentwood DC).

NB Students will achieve the highest marks for responses on product liability via general

negligence only if they display at least some knowledge of authorities and principles which directly relate to the product liability area, eg Grant v Australian Knitting Mills, res ipsa loquitur, etc. Many students chose to deal with product liability on the basis of the principles in the Consumer Protection Act 1987. In general, answers showed a competent understanding of the meaning of the main statutory terms ‘product’, ‘defective’, ‘producer’ and ‘damage’. Unfortunately, however, students often omitted to point out the fundamental principle of the CPA, ie that it is based on strict liability, with the result that it is unnecessary to establish negligence. In this connection, students should also refer to the ‘development risks defence’ in s.4(1)(e) of the Act, to the effect that the defendant will not be liable if ‘the state of scientific and technical knowledge was not such that [a producer of the type of product in question] might be expected to discover the defect…’. Some students referred to causation and remoteness, for which they were credited. So far as the remedy available to Sergio was concerned, it was sufficient for students to identify damages, but without any elaboration as to measure of damages.

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Question 08

This tort question involved two areas, the possible liability of Ben (i) to Alan under the Occupiers’ Liability Act 1984 and (ii) to Pam and Jane under negligence/psychiatric injury principles.

The Occupiers’Liability Act 1984 issues: students correctly argued that Alan was a trespasser in Ben’s garden and that, in order for him to successfully claim against Ben for his injuries, he would have to establish that Ben owed him a duty of care under the 1984 Act and that he had failed to observe that duty. Most students had an approximate idea of the conditions which must be satisfied in order for the duty to arise, but very few students were able to state them fully and accurately. First, it is clear from s.1(1) that the duty arises only where there the trespasser is injured by a danger due to the state of the premises and not where he is injured by the trespasser’s dangerous activities on the premises. Moreover the effect of s.1(3) is that the duty will arise only if the occupier knows of or has reasonable grounds to believe that the danger exits, he knows or has reasonable grounds to believe that a trespasser is or might be in the vicinity of the danger and that it is reasonable to expect the occupier to protect the trespasser against the danger. On the facts of the question, there was arguably a danger due to the state of the premises (the ‘derelict garage’) and it was also clear that Ben knew or had reasonable grounds for knowing of this danger and that he had reasonable grounds to believe that trespassers might come into the vicinity of the danger since he knew of earlier attempts at trespass. As a result, it was arguable that Ben owed Alan the statutory duty, although few students were able to explain the precise nature of the duty, ie to take reasonable care to see that the trespasser does not suffer injury on the premises by reason of the danger (s.1(4)). Students were then required to consider whether Ben had committed a breach of the duty, many correctly referring to the principle in s.1(5) of the Act to the effect that the duty ‘may, in an appropriate case’be discharged by virtue of the occupier having taken reasonable steps to provide a warning of the danger. Some students argued that the ‘Danger. Keep out’ sign which Ben had placed on his fence was a sufficient performance of the duty, for which they were credited, but the highest marks were given to students who considered the possibility that a child trespasser could not necessarily be expected to take notice of such a sign and that Ben should have taken greater steps to protect such a trespasser. In any event, many students considered the possibility that Alan could be said to be contributory negligent with the result that his claim would fail and such an argument was credited.

NB Students often continue to state, as in responses in previous examinations, that the occupier must know that there is a danger and that there is a likelihood of trespass, without recognising that it is sufficient that he has “reasonable grounds to believe” that these circumstances exist.

The liability of Ben to Pam and Jane: students were required to consider Ben’s possible liability in the tort of negligence for the possible psychiatric injury suffered by Pam and Jane. The first issue to consider was whether the claimants were primary or secondary victims. Most students correctly explained that a primary victim reasonably fears for his own safety, whereas a secondary victim is an unwilling witness to the traumatic incident in question but is not personally in danger. They concluded that both Pam and Jane were therefore secondary victims. It then became necessary to explain that, in order to establish the duty of care, both claimants have to show that they had suffered a ‘recognised psychiatric illness’ (eg post-traumatic stress disorder). It was unclear on the facts of the scenario that this illness was caused by a traumatic event or an ‘assault on the senses’ (Sion v Hampstead Health Authority) and that it was reasonably foreseeable that the person of ‘normal fortitude’ would suffer shock. The crucial issues related to the various

elements of ‘proximity’. In relation to Pam, although she witnessed the traumatic event, or at least, the ‘immediate aftermath’, with her own ‘unaided senses’, it would be unlikely that her relationship with Alan (a ‘friend of Alan’s family’) was sufficiently close to found a claim, although as many students indicated, the nature of their relationship in fact would be important. On the other hand,

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Jane, as Alan’s mother, would have a sufficiently close relationship with him but might have difficulty in establishing that she had witnessed the immediate aftermath of the incident, although the contrary was arguable

SECTION C (CONCEPTS)

Question 09

The question required students to discuss the relationship between law and morals and to consider whether the law ought to uphold moral values. The majority correctly began by proffering possible definitions of law (eg those of Salmond, Austin, Kelsen etc) and morality (eg that of Phil Harris) and proceeded to compare the respective characteristics of the two. In this respect, most students contrasted, for example, the ways in which law and morality arise or are changed, the compulsory nature of law and the voluntary nature of morality and the ways in which law and morality are enforced.

Better responses raised more sophisticated contrasts, for example, in relation to how disputes of law and morality are settled. The other aspect of the relationship between law and morals which required discussion concerned the extent to which law does or does not reflect morality. In this connection, most students were able to provide illustration of the proximity of law and morality (eg offences against the person and property, conspiracy to corrupt public morals, outraging public decency, marital rape, the limitations on the scope of consent to offences against the person etc) and the divergence of the two (eg traffic offences, swearing, adultery etc). Better responses carefully analysed the moral issues involved in the illustrations selected, although weaker

responses often failed to distinguish between the moral and other issues involved (eg the need to prevent harm). Better responses also referred to the difficulty which the law often faces in taking a moral stance, given the differing moral views in a pluralistic society and that the law often bases rules on principles other than morality, for example, utilitarianism, or the prevention of harm etc. In this connection, students referred to problematic areas such as that raised by Gillick, abortion and gender issues.

The second aspect of the question required students to consider whether the law ought to uphold moral values, in response to which most responses correctly centred upon the conflict between natural law and positivism and the Hart-Devlin debate. Although other students referred to philosophers such as Mill and Stephen. Good responses explained and distinguished these

theories in detail, but weaker responses often provided confused explanations and/or provided little detail. Natural lawyers believe that a principle can have legal status only if consistent with some ‘natural law’ idea, eg divine law (Aquinas), whereas positivists (eg Austin, Hart etc) believe that a rule which results from the legal process of the state constitutes ‘law’, even if it lacks moral content. Devlin and Stephen were ‘legal moralists’, ie they believed that the basis on which acts should be rendered unlawful is immorality. Devlin’s justification for this was that a society has a ‘shared morality’ and, if this breaks down, society will disintegrate. Mill and Hart can be described as ‘libertarians’, who argued that people should be free to pursue their own idea of the ‘good life’, that the only basis on which acts should be criminalised is the ‘prevention of harm’ and that the enforcement of morality is, in general, not a ground for legal intervention, Hart arguing that the enforcement of morality is generally harmful and unnecessary. Students also provided examples of the conflict between legal moralism and libertarianism/the prevention of harm, for example, in relation to ‘death’ (assisted suicide, cessation of medical treatment), birth (abortion, assisted reproduction), gender (discrimination, civil partnerships etc), and other issues, better students showing clear analysis of the moral and other dimensions.

NB Students should always answer the question set, even in relation to Concepts. Question 09 clearly contained two parts, the relationship between law and morality and whether the law ought

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to uphold moral values. Better students made it clear which part of the question they were answering, but many made no real attempt to carefully distinguish between the two parts, merely writing an essay on law and morality, thereby disabling themselves from achieving the highest marks.

Question 10

The question required students to discuss the extent to which liability in English law is and should

be fault-based. The vast majority were able to provide competent responses and there were many excellent ones, using either criminal or civil examples and often both. Students generally adopted the correct approach of briefly providing possible definitions of fault, for example, blameworthiness, responsibility for wrongdoing, etc and then proceeding to identify and analyse specific areas of law in order to demonstrate the areas which indicate the presence or absence of fault. In relation to the actus reus of criminal law, many students discussed the requirement of voluntariness and the defence of automatism, the general rule that an omission does not give rise to criminal liability and the exceptions to that rule (for example, where the defendant has assumed responsibility to act, or where the duty to act arises because he had created a situation of danger etc). Many students also discussed different aspects of causation and the circumstances where the defendant can be argued to be, or not to be, at fault, in relation to intervening acts such as an act of the victim or of a third party.

Good students also subjected the ‘thin skull’ rule to criticism and correctly questioned whether decisions such as Blaue show sufficient fault for criminal liability, being based, in effect, on the defendant’s ‘bad luck’. Students also analysed mens rea issues and argued that the different categories of mens rea (direct intent, oblique intent, subjective recklessness etc) show different grades of blameworthiness which generally result in different sentences. Some students also contrasted subjective and objective recklessness, raising the question whether the latter (together with gross negligence) denoted sufficient fault to merit criminal liability. In this context, better students referred to the justifications for the overruling of Caldwell by the Supreme Court in R v G. Many students also analysed the various defences to criminal liability in order to demonstrate the total or partial absence of fault. Some students also questioned whether ‘constructive liability’, where there is lack of correspondence between actus reus and mens rea (for example, in relation to s.47 and s.20 Offences Against the Person Act 1861 and constructive manslaughter), fails to demonstrate sufficient fault to warrant criminal conviction of a serious offence.

In the civil law context, students analysed relevant areas such as the various aspects of the tort of negligence and occupiers’ liability, emphasising the importance of reasonable foreseeability and the duty to act with reasonable care. The defences of contributory negligence and volentinon fit injuria were also considered in order to demonstrate the extent to which fault on the part of the claimant can wholly or partly affect his claim. Students were also expected to provide examples from the criminal law and/or the civil law contexts of no-fault liability.

In relation to criminal liability, students correctly referred to examples of strict liability (eg

Storkwain, Alphacell, Shah, etc) and often also discussed the idea of absolute liability as illustrated by ‘state of affairs’ cases such as Larsonneur and Winzar. In the civil law context, students discussed relevant examples of no-fault liability such as the Consumer Protection Act 1987, vicarious liability and Rylands v Fletcher, often pointing out that the decision in Cambridge Water v Eastern Counties Leather can be said to have injected an element of fault into the rule. Some students also considered the tort of private nuisance and correctly explained that, in general, liability is strict (since the fact that the defendant exercised reasonable care will not provide a defence), but cleverly argued that liability can sometimes be argued to be fault-based, for example, where the defendant is malicious (as in Christie v Davey). The extent to which liability should be

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fault-based required students to consider the possible arguments which may justify fault and no-fault liability. The main arguments (correctly) relied on by students to justify strict liability in criminal law were that such liability is for the protection of the public, that strict liability offences generally are ‘not truly criminal’ and do not result in social stigma etc. On the other hand, most students also sought to put forward the standard arguments sought to justify fault liability, for example, that liability without fault is not morally blameworthy, that strict liability offences do not necessarily protect the public, and that they attempt to require people to attain an impossible standard etc. Students who based their response on the civil law argued that no-fault liability was often beneficial, for example, that no-fault manufacturers’ liability enables a consumer to establish a claim without the difficulty of proving negligence in complex cases and that it avoids many of the practical problems involved in litigation (eg delay and expense). Many students further argued forcefully that, in view of such litigation problems, no-fault compensation schemes which by-pass the tort system should be adopted, either financed by the state (like the New Zealand model) or based on insurance or social security schemes.

Question 11

The question required students to critically analyse the extent to which judges can and should be creative in developing the law through judicial precedent and statutory interpretation. In relation to the precedent aspect of the question, there were many competent, and some excellent, responses. In order to achieve the highest marks, it was necessary for students to explain the essential

features of the doctrine of precedent (the judicial hierarchy, the distinction between ratio and obiter etc) and the features which offer flexibility and the opportunity for creativity (eg distinguishing, the Practice Statement in relation to the Supreme Court, the exceptions to Young v Bristol

Aeroplane in relation to the Court of Appeal, appeal court decisions with multiple ratios, overruling etc). Better students also concluded, quite correctly, that the Supreme Court has much greater scope for creativity than lower courts. Unfortunately, some students failed to achieve the very highest marks by failing to provide sufficient illustration of the operation of creativity (for example,

Herrington v BRB and Crown v G in relation to the Practice Statement, Balfour v Balfour and

Merritt v Merritt in relation to distinguishing, the development of oblique intent of murder and so on). Most students provided some examples but with insufficient explanation and detail.

The question further required students to criticise/evaluate the extent to which judges are able to display creativity in the operation of precedent and the vast majority seemed well-prepared for this aspect of the question. Many students correctly referred to the various arguments against judicial law-making (for example, the retrospective effect of judicial decisions, the need for relevant cases to arise, judges’ lack of training as reformers etc). Many students also raised the various

constitutional issues, for example, the problem that judges are unelected. Better students took this line of argument further by giving examples of instances where judges refused to change the law on the ground that it involved an issue of policy which should be left for Parliament to deal with, for example, Clegg (in relation to self-defence) and C v DPP (in relation to doli incapax).

Whereas the responses on the precedent aspect of the question were good, those relating to statutory interpretation were generally poor. The explanations of the various ‘rules’ of statutory interpretation were reasonable, but many answers contained no or little illustration and others contained illustrative examples from the case law with insufficient detail in failing to highlight the relevant word or phrase in the particular statute. For example, students seeking to explain Fisher v Bell as an example of the literal rule should state that the statute in that case used the words ‘offer for sale’, and explanations of Smith v Hughes as an example of the mischief rule should stress that the statute in that case referred to prostitutes soliciting ‘in the street’. Moreover, few students discussed the extent to which the ‘rules’ of interpretation allow judges to be creative,

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although better responses correctly pointed out that the purposive approach and the mischief rule give judges scope to consider legislative policy. Some students also validly pointed out that the ‘rules’ of interpretation are not binding, with the result that judges have considerable choice as to how to approach the interpretation of statutes. In relation to the issue whether judges should be creative via interpretation of statutes, students often referred to arguments used to justify or criticise creativity via precedent and such arguments were credited.

Mark Ranges and Award of Grades

Grade boundaries and cumulative percentage grades are available on the Results Statistics

page of the AQA Website.

Converting Marks into UMS marks

Convert raw marks into Uniform Mark Scale (UMS) marks by using the link below.

References

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