dimanche 18 janvier 2015

Eléments de correction - Law of Tort exam January 2015


These are only the main points we expected you to understand AND explain

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Some of you forgot about the dear method that we had worked together in class. Please make sure you respect it in the future.

Please be careful about grammar mistakes. "Does B owed a duty of care to A?"... Come on...

Don't use the expression "in casu" instead of "in this case" as this isn't really done in English (exams)

Be clear when you explain your reasoning. Don't mix the facts / the law / the interpretation you make of the facts.


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CAS PRATIQUE 1

This was clearly an "omission" case study. Some of you chose to assess Carlos AND Bernard's liabilities separately. This was unnecessary as there is only one damage. Furthermore, if you're a good lawyer, you'll advise Adrian to sue the police on the ground of vicarious liability. Individual liability of each one of them is therefore not necessary. Here Bernard then Carlos were in charge, vicarious liability may be used.

We are looking at TORTS, not contract. We need a duty of care and a breach of that duty. We also need a damage.

- Does the police owe a duty of care to Adrian? (1) Was there a breach of that duty? (2)

(1) Omissions form part of the law of negligence. Negligence has been part of the law of torts since Donoghue v Stevenson.

As a general rule, the duties imposed by the law of negligence are duties not to cause injury to others; they are not duties actively to help others unless the law imposes so, as an exception.

Here the case of Barrett v Ministry of Defence (1995, CA) clearly applied. In Barrett, it was held that a duty was owed in relation to the officer’s failure to have someone stationed to watch the drunken man while he slept because by that point, responsibility for the man’s safety had been assumed by the officer concerned. In this case, as a general rule, individual responsibility (of the plaintiff) is taken into account only until the point when someone else intervenes. This case had been criticised for this also.

In our case, Carlos takes Adrian away for him to rest. He assumes responsibility at that moment. So the answer to the first question is yes.

(2) Adrian later tells him he feels better, 3 hours after and Carlos let him go home on his own. He then falls unconscious and hurts himself. Is there a breach of the duty of care? Here you had to discuss yes or no, depending on which arguments you could bring (3 hours of rest is long, but Adrian is a very young man, he just graduated... I would vote there IS a breach but you could argue otherwise).

You could also warn Adrian that his damages may be reduced on the defence of contributory negligence, like in the case of Barrett.

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CAS PRATIQUE 2

Some of you explored False Imprisonment. Why? This is wrong. False imprisonment is NOT about prison (in most cases it isn't). In the case of Iqbal v Prison Officers Association (2009), which some of you (wrongfully) quoted, it was about a strike in the prison which unfairly led the prisonner to stay in his cell all day (the case was dismissed anyway). Our case is completely different, it has nothing in common with the facts of Iqbal. 

For those of you who quoted R v Governor of Brockhill Prison (2000), again, this is a mistake. The plaintiff claimed she was falsely imprisoned as her prison sentence was miscalculated. Was it the case of our plaintiff here? No. 

So False Imprisonment was NOT an option. 

This case was again.... An omission case!

Here, again, , the duties imposed by the law of negligence are duties not to cause injury to others; they are not duties actively to help others... unless the defendant exercised a control over the plaintiff.

- Did the prison exercise a control over the plaintiff?

The psychological damage is linked to the suicide she committed, which was not prevented by the prison.

You could quote several case. In Reeves (1999, HL) it was held that the police’s duty to prisoners in custody extends to a positive duty to take reasonable steps to assess the suicide risk of all prisoners. 


Kirkham v Chief Constable of Greater Manchester [1990] had established that a duty of care was owed in respect of suicide attempts of prisoners known to be mentally ill.


In Orange v Chief Constable of West Yorkshire Police [2001], a man committed suicide by hanging himself with his belt from a grille on the door in a police cell after being arrested and detained for being drunk and disorderly. His widow claimed that the police had owed a duty to take away any means of suicide from him, such as his belt, and that they should have watched him more carefully. The Court of Appeal held that the duty from Reeves was only to take reasonable steps to assess whether a prisoner posed a suicide risk, and to act accordingly. As the police had no real reason to think that this particular prisoner would attempt suicide, the duty did not arise in this case.

This distinction was later approved by the European Court of Human Rights in Keenan v United Kingdom [2001].

In our case, the plaintiff WAS diagnosed with depression (you could argue whether or not this amounted to a mental illness), and the doctor clearly said that she posed "a suicide risk".

Therefore, the prison owed a duty to her, even though she was in a punitive cell. The doctrine of ex turpi causa does not apply as some of you argued... (This is a shocking statement to be honest) Otherwise none of the above cases would have succeeded.



For any questions, please email the teacher,



Lucile Abassade


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