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Tort Seen Examination Preparation
essay prep for tort seen examination end of semester 1
Module
Law of Tort (LAW209)
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University of Liverpool
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Tort Seen Examination Preparation
Bassett runs an outdoor activities centre that is popular with hikers. Wooster is a keen
mountaineer and visits the centre with his friend, Jeeves. They decide to go on a guided hike
with Bassett. Before departing, Bassett gives a safety briefing and warns that ‘The outdoors
can be dangerous sometimes.’ Unperturbed, Wooster and Jeeves set off.
During the hike, Bassett brings Wooster and Jeeves to a 60-metre (200-foot) rock face
known as ‘The Witch’s Wall’. Jeeves lacks climbing experience, but Bassett tells him that the
climb is easier than it looks. Bassett hands both men a length of rope, a harness, and a
carabiner. Jeeves asks if he can also wear a helmet, but Bassett failed to bring any with him.
Wooster, who has won climbing competitions, reassures Jeeves that a helmet is not
necessary, and, in any case, it would impede their view of the beautiful mountain scenery.
Jeeves begins to climb first and reaches the top without incident. Wooster then follows and
climbs about 5 metres (16 feet) when his carabiner buckles. Wooster falls and suffers a
serious head injury.
Jeeves rings for an ambulance. When the paramedics arrive, they find that they do not have
the right equipment to reach Wooster. They contact the mountain rescue service, which
dispatches a helicopter to airlift Wooster to hospital. The pilot misreads the location’s co-
ordinates and initially goes to the wrong place. By the time the helicopter arrives, more than
two hours have elapsed since Wooster’s fall. The mountain rescue team lifts Wooster onto a
stretcher secured to the helicopter by a winch. As the helicopter is leaving the scene, the
pilot is careless and the stretcher collides with The Witch’s Wall. Wooster suffers a broken
leg in the impact.
When Wooster arrives at hospital, a doctor finds that he has a subdural haematoma. If he
had arrived at the hospital within an hour of his fall, Wooster would have had a 95% chance
of making a full recovery. Owing to the delay, that chance was reduced to 45%. Wooster is
eventually left with permanent brain damage. Medical evidence suggests that it is possible
that Wooster’s injuries would have been less serious if he had been wearing a helmet at the
time of the accident.
It later transpires that the carabiners Bassett supplied to Wooster and Jeeves were designed
for a children’s swing set and could only bear a maximum weight of 50kg (110lbs). Wooster
weighed 75kg (165lbs) at the time of the accident. According to industry guidelines,
carabiners used for climbing should be able to withstand weights of up to 2,000kg (4,409lbs).
Despite this, Bassett insists that it is common practice to use lighter-duty carabiners for
climbs of up to 100 metres (328 feet) and that it is well known that the 50kg clips are
stronger than is claimed. Bassett says that he has been a climbing guide for over 20 years
and has always used lighter-duty carabiners on The Witch’s Wall. They are cheaper to
maintain and easy to use. Moreover, the carabiners have only buckled three times out of
tens of thousands of climbs. Besides, Bassett says that Wooster knew the risks and would
not have worn a helmet in any case.
In the weeks following the accident, Jeeves begins to suffer from nightmares and anxiety. He
has struggled with the realisation that it could just as easily have been his carabiner that
gave way. Jeeves’ doctor has referred him for counselling.
Advise Wooster and Jeeves as to any claims they may have in negligence.
Wooster’s Claims:
WOOSTER V BASSET – Head Injury
A claim in negligence comprises 3 essential elements: a duty of care (DOC), a
breach of that duty and causation (and damage which is not too remote).
In this scenario, it is likely that the defendant, Basset (B), will be liable for the head
injury sustained by the claimant, Wooster (W).
There is unlikely to be any dispute that B owes W a DOC; in MacIntyre V Ministry of
Defence, Spencer J re-stated the law that lead climbers / instructors owe a duty to
take all reasonable steps to minimise danger of death or injury to those for whom
they are responsible. This makes clear that B owes a duty to those for whom he is
responsible during in the course of his employment, namely W and Jeeves (J).
W must establish that B was in breach of his duty to him; B will be judged by the
standard of the “reasonable person” (Blyth V Birmingham Water Works). This is an
objective standard: the RP is said to be “free both from over-apprehension and from
over-confidence” per MacMillan LJ in Glasgow Corporation V Muir. Here, B will be
judged by the standards of a reasonably competent climbing instructor in the same
circumstances. B warns W that the “outdoors can be dangerous” during the safety
briefing which speaks to the high likelihood of harm (Bolton V Stone) that B himself is
aware of; therefore, B will be expected to take greater care in conducting the climb to
keep everyone safe. He may attempt to claim that there was not a high likelihood of
harm since the children’s swing set carabiners “only buckled 3 times out of tens of
thousands of climbs” and so harm was not a reasonably foreseeable result of the
lighter duty carabiners being used. However, this is likely to be deemed illogical in
light of the industry guidelines and the fact that W weighed 25kg more than the
carabiners could withstand, posing a significant threat to his safety.
Due to the already dangerous nature of climbing, it follows that the consequences of
any incidents may be extreme if not fatal (Paris V Stepney Borough Council).
Especially since B and W are climbing with a novice, J, it seems unreasonable for B
to take such little care to ensure their safety by failing to provide helmets (Latimer V
AEC Ltd) which is an easy, low-cost precaution. Additionally, providing the correct
strength carabiners is not particularly burdensome given that W’s life is potentially at
stake and so it seems he has fallen below the expected standard of care. B insists
that it is common practice (Brown V Rolls Royce Ltd) to use the lighter-duty
carabiners for climbs up to 100m (Witch’s Wall is 60m). However, a negligent act
cannot be excused merely because it is common practice and since industry
guidelines dictate that carabiners must be able to withstand weights of up to 2000kg,
it is likely that B will still be in breach of his duty given that his carabiners fall far short
of the recommended strength (1950kg short).
It is clear that B is the factual cause of W’s head injury; “but for” B providing
insufficiently strengthened carabiners, W would not have fallen and sustained a head
injury (Barnett V Chelsea & Kensington Hospital Management Committee). B claims
that W would not have worn a helmet if provided with one; this is somewhat
confirmed where W “reassures J that a helmet is not necessary”. If the absence of a
helmet was the sole cause of W’s injury, B’s liability may have been discharged on
grounds of lack of causation (McWilliams V Sir William Arrol). However, here, B’s
use of the wrong carabiners was the sole cause of the fall and subsequent injury; the
responsibility for someone and, in the course in intervening, actively made the
situation worse. Here, W’s chance of recovery was worsened, owing to their delayed
intervention and they broke his leg while lifting him from the scene; this likely gives
rise to a DOC.
The MRS’ breach of duty is quite clearly and easily established. Due to W’s already
critical condition, the reasonable rescuer in the same circumstances (Blyth V
Birmingham Water Works) would have exercised great care to read the co-ordinates
correctly to ensure they arrive to W’s rescue in a prompt manner (rather than 2 hours
later). In light of the extremely high likelihood of harm (Bolton V Stone) and the
seriousness of the consequences (Paris V Stepney BC) arising from the operation
conducted by the pilot, the reasonable person would have taken greater care when
flying to avoid worsening his existing injury or from inflicting further harm upon him –
the pilot here failed in both respects. Therefore, the “careless” nature of the pilot’s
conduct in rescuing W would more likely than not fall below the expected standard of
care, meaning the MRS have breached their duty to W.
The social value involved in the MRS’s conduct must be considered though as it may
lower the expected standard of care (Watt V Hertfordshire CC); s2 Compensation
Act 2006 and the Social Action, Responsibility and Heroism Act 2015 have both
sought to underscore this consideration. However, even with a lowered standard of
care, it is likely that the MRS’ careless conduct will still fall far short of such an
expectation.
It is evident, in regard to W’s broken leg, that the MRS are the cause of injury in fact
and in law; “but for” (Barnett V Chelsea & Kensington Hospital Management
Committee) the pilot’s carelessness, the stretcher would not have collided with
Witch’s Wall and broken W’s leg. There are no NAIs which may break the chain of
causation; W’s injury is not too remote (Wagon Mound No) from the MRS’ breach
and the damage was definitely a reasonably foreseeable result of said carelessness
(Hughes V Lord Advocate). Therefore, it seems likely that the helicopter pilot – and
by extension the MRS - will be liable for the full extent of W’s broken leg.
The remainder of W’s case against the MRS rests on whether his loss of chance is
actionable. Although the claim in Hoston V East Berkshire Area Health Authority
failed on its facts (since, on balance, the claimant’s condition was unredeemable by
the time the defendant’s negligence became manifest), Phillips LJ ‘left the door open’
for the correct claimant, in Gregg V Scott (where the injury had actually
materialised). Here, W possessed a 95% chance of a full recovery had he arrived at
the hospital within an hour of the fall which fell to 45%, owing to the MRS’ delay.
Since it is more likely than not that W would have made a full recovery had the MRS’
negligence not transpired, it is highly likely that the court will find in his favour –
damages will be awarded proportionate to W’s lost chance from the subdural
haematoma resulting in permanent brain damage.
In conclusion, the helicopter pilot and MRS owed a duty once they had assumed
responsibility for W which they breached by mis-reading the co-ordinates, actively
making the situation worse upon intervening. This was a definite cause of W’s
broken leg and his lost chance at a full recovery is highly likely to be actionable
before the court. Therefore, the MRS will be liable for the full extent of W’s broken
leg and his permanent brain damage.
Jeeves’ Claims:
JEEVES V BASSET – Psychiatric Injury (Primary V)
It is likely that B will be liable for the psychiatric injury (PI) suffered by J, subsequent
on his involvement in the incident at The Witch’s Wall.
First, it must be established that J is suffering from a “medically recognised” PI, per
Lord Denning MR (Hinz v Berry), and not mere human emotion which does not
qualify as PI per Mann LJ (Reilley v Merseyside Health Authority). Anxiety is a
medically recognised condition contained in the DSM-5, a similar condition to that in
Tan V E London & City Health Authority; this recognition is reinforced by J’s referral
for counselling. Nightmares are a human response to an unpleasant experience and
so are not likely to qualify as PI per se. For J’s nightmares to be actionable, expert
medical evidence would have to provide that this is symptom of PTSD, for instance
(White V CC South Yorkshire Police). Regardless, an anxiety diagnosis is more than
sufficient to invoke the special rules governing PI.
It is likely that J will be considered a primary victim (PV) for the purposes of his
claim; a PV is one who suffers PI after being directly involved in an accident and is
either himself physically injured or is put in fear of personal injury. J comes to the
realisation that it could “just as easily have been” him in W’s position, suggesting he
was put in fear of his own physical safety. B was under a duty to avoid causing him
foreseeable physical injury and so it is “unnecessary to ask whether he was under a
separate duty of care not to cause foreseeable PI” (Page V Smith). Given that J was
subjected to the same negligent treatment as W, there is also sufficient proximity
(White V CC South Yorkshire Police) as J is within the “zone of danger”, reinforcing
his PV status. As personal injury was reasonably foreseeable, B will be liable for all
the results of his negligence which would encompass J’s PI.
Since it has been established that B owes a DOC to J, it is unnecessary to prove that
B breached this duty or that there is a causal link between that and J’s PI since this
is often inferred from the fact that the claimant has fulfilled the tests for duty.
Therefore, it is likely that B will be liable for the full extent of J’s PI.
Overall, W has strong claims against both B and the MRS (and potential damages
from the ambulance service) in relation to his broken leg, head injury and
subsequent brain damage. There is also strong authority to suggest that J will have a
claim in negligence against B for the PI he suffered subsequent on the incident at the
Witch’s Wall.
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Tort Seen Examination Preparation
Module: Law of Tort (LAW209)
523 Documents
Students shared 523 documents in this course
University: University of Liverpool
Was this document helpful?
Tort Seen Examination Preparation
Bassett runs an outdoor activities centre that is popular with hikers. Wooster is a keen
mountaineer and visits the centre with his friend, Jeeves. They decide to go on a guided hike
with Bassett. Before departing, Bassett gives a safety briefing and warns that ‘The outdoors
can be dangerous sometimes.’ Unperturbed, Wooster and Jeeves set off.
During the hike, Bassett brings Wooster and Jeeves to a 60-metre (200-foot) rock face
known as ‘The Witch’s Wall’. Jeeves lacks climbing experience, but Bassett tells him that the
climb is easier than it looks. Bassett hands both men a length of rope, a harness, and a
carabiner. Jeeves asks if he can also wear a helmet, but Bassett failed to bring any with him.
Wooster, who has won climbing competitions, reassures Jeeves that a helmet is not
necessary, and, in any case, it would impede their view of the beautiful mountain scenery.
Jeeves begins to climb first and reaches the top without incident. Wooster then follows and
climbs about 5 metres (16 feet) when his carabiner buckles. Wooster falls and suffers a
serious head injury.
Jeeves rings for an ambulance. When the paramedics arrive, they find that they do not have
the right equipment to reach Wooster. They contact the mountain rescue service, which
dispatches a helicopter to airlift Wooster to hospital. The pilot misreads the location’s co-
ordinates and initially goes to the wrong place. By the time the helicopter arrives, more than
two hours have elapsed since Wooster’s fall. The mountain rescue team lifts Wooster onto a
stretcher secured to the helicopter by a winch. As the helicopter is leaving the scene, the
pilot is careless and the stretcher collides with The Witch’s Wall. Wooster suffers a broken
leg in the impact.
When Wooster arrives at hospital, a doctor finds that he has a subdural haematoma. If he
had arrived at the hospital within an hour of his fall, Wooster would have had a 95% chance
of making a full recovery. Owing to the delay, that chance was reduced to 45%. Wooster is
eventually left with permanent brain damage. Medical evidence suggests that it is possible
that Wooster’s injuries would have been less serious if he had been wearing a helmet at the
time of the accident.
It later transpires that the carabiners Bassett supplied to Wooster and Jeeves were designed
for a children’s swing set and could only bear a maximum weight of 50kg (110lbs). Wooster
weighed 75kg (165lbs) at the time of the accident. According to industry guidelines,
carabiners used for climbing should be able to withstand weights of up to 2,000kg (4,409lbs).
Despite this, Bassett insists that it is common practice to use lighter-duty carabiners for
climbs of up to 100 metres (328 feet) and that it is well known that the 50kg clips are
stronger than is claimed. Bassett says that he has been a climbing guide for over 20 years
and has always used lighter-duty carabiners on The Witch’s Wall. They are cheaper to
maintain and easy to use. Moreover, the carabiners have only buckled three times out of
tens of thousands of climbs. Besides, Bassett says that Wooster knew the risks and would
not have worn a helmet in any case.
In the weeks following the accident, Jeeves begins to suffer from nightmares and anxiety. He
has struggled with the realisation that it could just as easily have been his carabiner that
gave way. Jeeves’ doctor has referred him for counselling.
Advise Wooster and Jeeves as to any claims they may have in negligence.
