ATHE Level 5 Unit 1 Law of Tort Assessment Answers 2026

Unit aims

This unit aims to develop learners’ knowledge and understanding of general principles of tort and the associated practice area,  including key aspects of professional practice. Learners will focus on the tort of negligence, gaining knowledge and understanding of the elements required to prove a claim in negligence, the unique approach of the courts to claims for psychiatric injuries and the availability of damages and defences.

ATHE L5 LO1. Understand general principles of tort and civil litigation.

ATHE L5 1.1 Explain the role and function of the law of tort.

Answer…

Main Functions of Tort Law

Tort law has several significant roles in society. Here are the 5 main functions of tort law, and tort case law that exemplifies each function:

• Compensation for Harm: Tort laws offer a way to remedy harm that is brought about by the misdeeds of others. The case of Donoghue v. Stevenson (1932) illustrates this, whereby a woman came to suffer from illness after having discovered a decomposed snail in her ginger beer. The court found that the manufacturer had a duty of care towards the consumer, and consequently, it was held that the manufacturer was liable for the damage suffered by the consumer.
  
  
• Deterrence: Deter individuals and organisations from causing harm. Liebeck v. McDonald's Restaurants (1994): A woman gets severe burns from spilt hot coffee. The court gave the company a huge lawsuit because it serves coffee that is too hot, and to prevent more such cases from happening again.
  
  
• Tort Law Corrects Injustice: Tort law aims to correct injustices by making the wrongdoers accountable for their actions. In Palsgraf v. Long Island Railroad Co. (1928), a woman was injured when railroad company employees failed to take care in the performance of their duties. This corrects any injustice, as the court ruled that the company was not responsible for the harm, since it was not foreseeable.
  
  
• Tort law protects the rights and interests of individuals by offering them legal remedies to redress any violation. Ashby v. White (1703) is a case in which a man was disenfranchised. The court ruled that the man's right to vote had been infringed and ordered damages to uphold his rights.
• Encouragement of Social Order: Tort law fosters social order, defines standards of behaviour and gets people to behave responsibly. Donoghue v. Stevenson (1932), discussed above, led to the court creating a duty of care towards consumers for manufacturers and encouraged prudent manufacturing and consumer safety.
  The following case laws demonstrate the different roles of tort law in compensation for harm, prevention, correction of injustice, protection of rights and interests and the maintenance of social order.

ATHE L51.2 Explain in outline the different types of tort.

Answer

There are different types of torts, and not all of them apply in every situation. Different types of torts do not all apply in every situation.

Tort law is a part of civil law that handles civil wrongs committed by one party against another, resulting in harm or injury. There are multiple types of torts, with different elements and principles of law. Here are some common types of torts and the circumstances under which tort law might be applicable:

1. Negligence: When someone does not use reasonable care, causing somebody else to be harmed. This may be the case in accidents involving cars, medical malpractice or slip and fall.
   
   
2. Intentional Torts: Intentional torts are intentional actions which result in harm or injury to another person. Assault and battery, defamation, and false imprisonment are examples.
3. Strict Liability: Liability for harm done, without regard to fault or intention. In cases of dangerous activities or defective products, this frequently holds.
4. Nuisance: Nuisance is a wrongful interference with another's use or enjoyment of his or her property which is not reasonable. This can be noise, odours or other disturbances.
5. Trespass: Trespass is defined as when someone intrudes on or stays on someone else's property without their consent. It may also be the case of causing injury to the property of another person.
6. Product Liability: Product liability is about injuries or damages resulting from defective or unsafe products. This may involve design flaws, manufacturing flaws, and/or insufficient warning.
7. Defamation: Defamation is defined as making false statements which damage the reputation of a person. It can be in the form of slander (spoken) or libel (written).

Tort law can be used in several situations, such as:

• Personal injury cases: When someone is injured because another person or entity was negligent or intentionally caused the injury.
  
  
• Property damage: When someone's property is damaged due to the actions of another person or entity.
  
  
• Professional malpractice: A failure by a professional (such as a doctor or lawyer) to practice with the same standard of care as they are expected to and cause the client to be harmed.
  
  
• Consumer protection: When the consumer suffers damage from the product being faulty or from business practices being misleading.
  
  
• Violation of privacy rights: When privacy rights are breached, for example, by the invasion of privacy or use of private information without permission.

This is important to note because the context in which tort law may apply may differ from state to state and from case to case. A lawyer is recommended to get accurate and up-to-date information about tort law in a specific jurisdiction.

ATHE L5 1.3 Explain the standard and burden of proof in civil law.

Answer

STANDARD OF PROOF

There are two standards of proof:

• the balance of probabilities, and
• beyond reasonable doubt

In commercial claims and civil claims, the standard of proof is the balance of probabilities. In criminal proceedings, the standard of proof is "beyond reasonable doubt".

If the claimant satisfies the balance of probabilities for all of the facts that need to be proven to make out the cause of action, they will be successful in the proceedings.

JUDICIAL FINDINGS OF FACT

Facts are:

• Made statements of case: These must be demonstrated.
  
  
• shown in a witness statement or in an affidavit, which is also by evidence
  
  
• decided by the judge at the end of the trial by applying the standard of proof to the evidence received by the court during the trial
  The difference between having proof for a case and proving a case is how much the burden of proof is discharged to the applicable standard of proof.  It's about the difference between winning and losing a case.

BURDEN OF PROOF

In commercial litigation, the necessary elements of a cause of action alleged (ie their case) must be proven by each party. So, the general rule is that the party which alleges a fact must prove it. That's done by:

• Presenting their own evidence
• obtaining the evidence from the opponent.
• The opponent acknowledges that it is a fact
• having the benefit of presumption, or
• The court's awareness of the fact.

Also:

Each of the elements of the legal claim – the cause of action – must be established to the required standard of evidence.

• When the party which bears the burden to prove an essential ingredient of their case fails to do so, they will lose their case. It must be specifically disposed of for every essential ingredient to the desired level of proof
  
  
• If a judge is not convinced of the truthfulness of the claimant's case, or the chances of it being correct are even, the burden of proof is not met, and the claimant loses
  
  
• A judge is not required to decide one way or the other. If the versions of events that each party puts forth are unlikely and not credible, the claimant's burden is not met, and the claimant does not succeed.
  
  
• The “onus of proof” is also referred to as the burden of proof. When it is said that a party “bears the burden”, it is a reference to the fact that the party bears the burden of proof.

ATHE L5 LO 2. Understand fundamental aspects of legal practice.

ATHE L5 AC 2.1 Outline the court hierarchy, the overriding objective of the underpinning procedure rules and the track allocation system

Answer: 

1.    The Civil Court Hierarchy

The court hierarchy determines which court will have jurisdiction for a claim depending on the value and complexity of the claim, as well as where a claim could be appealed.

• The Supreme Court is the highest appellate court in the UK, which hears cases of ‘significant public importance’ or ‘legal importance'.
• County Court: A court of general jurisdiction that hears civil cases.High Court: A court of general jurisdiction that hears civil cases.
• High Court (London) – deals with specialist, high value and complex cases (King's Bench; Chancery; Family Divisions) with district courts.
• County Court: where most civil disputes happen throughout the day.

2.    The Overriding Objective

The underpinning procedural rules for civil courts are the Civil Procedure Rules (CPR). The main purpose, or Overriding Objective (CPR Part 1), is to allow the court to deal with cases fairly and fairly. 
To deal with a case "justly and at proportionate cost", the court takes into account:

• Ensuring parties are on an equal footing.
• Saving expenses.
• Proportionality: managing the case as a measure of its monetary value, significance, complexity and that of the parties' financial resources and standing.
• Dealing with the case expeditiously and fairly.
• Designating a proper amount of court resources.
• Ensuring adherence to rules, practice directions and orders.

3.    Track Allocation System

After a defence is served, cases in the High Court and County Court are assigned to a "Track" that determines the procedure they will follow and the time they are likely to take. This will ensure that cases are dealt with appropriately depending on their size.

• Fast Track: Applies to claims involving sums of £10,000 or less. A simple scheme designed to make it cheaper, with only minimal legal costs recoverable if the claimant wants to pursue the matter by legal action. 
  
  
• Fast Track: Where the claims are relatively simple, and the claim is worth between £10,000 and £25,000, the process is likely to be more tightly managed, and the trial is likely to last no longer than one day.
  
  
• Intermediate Track: Claims £25k – £100k. A new ‘fast track’ and ‘multi-track' justice service to complement the existing system and with a maximum cost to ensure proportionality.
  
  
• Multi-Track: For very high-value cases where the cost is £100,000 or more, or where there is a need for a significant amount of oral/expert evidence (value not relevant).

ATHE L5 AC 2.2 Explain in outline the methods available for funding a claim in tort

Answer:

There are several ways to fund a tort claim, including Conditional Fee Agreements ("No Win, No Fee"), Damages-Based Agreements, Legal Expenses Insurance or third-party funding. These are typically used by claimants to evade hefty initial legal fees. 

The main ways of funding a civil tort claim in England and Wales are discussed below:

1.    Conditional Fee Agreements (CFA):

• How it works: The "no win, no fee" principle is that the solicitor and client will only be paid if the claim is successful.
   
• Winner: You pay the normal legal costs and a set amount of money ("success fee") that has been agreed with the lawyer, but is limited to ≤ 25% of your damages in a personal injury case. If the claim is unsuccessful, you will not have to pay your solicitor's normal attorneys' costs.

2.    Damages-Based Agreements (DBA)

• How it works: Another type of contingency fee is the DBA, a fee that is determined as a fixed percentage of compensation actually recovered."
  
  
• Result: If this claim is successful, the fee will be subtracted from your damages. The solicitor is not paid if the claim is a failure.

3.    Legal Expenses Insurance, or LEI

• Before the Event (BTE) Insurance: Usually covers another event that is part of a home or car insurance policy and may be offered as well. It is bought ahead of time and protects against legal costs and expenses in case of a claim.
• After-the-Event (ATE) Insurance: This type of insurance is bought after an event has happened. It does not pay your solicitor, but it financially protects you if your case is lost because it covers the cost of your disbursements (such as medical reports, etc.) and the opponent's costs.

4.    Third-Party Litigation Funding

•    How it works: An independent, commercial funding entity will agree to pay your legal fees and expenses in exchange for a portion of the settlement or damages. 
•    Outcome: applies to claims that involve high dollar amounts or complicated matters. Typically, when the claim is unsuccessful, the funder can write it off, and you won't be on the hook.

5.    Private Retainer (Self-Funding)

•    How it works: The old-fashioned way in which you pay the solicitor's hourly rates or a fixed fee “as you go”.
•    Advantage: You stay in complete control of the litigation, but you must endure the financial burden as well; if you do not prevail, you will have to pay your own legal expenses, and you probably will have to pay the other party's expenses as well. 

6.    Support for Trade Unions or Members

How it works: If you belong to a trade union or some professional associations, they may assist you in representing you at no cost or in paying for your claim if your tort injury happened in the course and scope of your work or everyday life.

2.3 Outline key ethical considerations for a legal professional representing clients in a tortious matter

Answer:

When handling tortious issues (such as negligence, personal injury), it is not only important to be a zealous advocate, but it is also essential to maintain rigorous standards of professional ethics. The following factors must be taken into consideration: Confidentiality of your clients, avoiding conflict of interest, being fully competent and giving honest advice to your clients, and your overriding duty to the court. 
In tort litigation, some of the key ethical issues are:

• Duty to the Court and Duty to the Administration of Justice: Must act independently, must not mislead the court, and must also present all evidence, regardless of whether it being against the client's tort claim. 
• Conflict of Interest: If there is a substantial risk that your personal or financial interests or those of another client come into conflict with those of your client, then you must not act.
• Client Confidentiality: All confidential information that the client provides must be treated as personal and can only be shared with the client's informed consent or by law.
• Competence and Diligence: You need to have the expertise needed to value and litigate the tortious issue correctly and regularly update the client on risks and costs, as well as success rates.
• No Aggressive Conduct: Do not make unmeritorious or exaggerated allegations, intimidate opponents, or use litigation for arbitrarily delaying a proceeding or for cost.

2.4 Identify how technology is used in the practice of civil law

Answer:

Artificial intelligence

Artificial Intelligence (AI) Software mimics human thought processes to enable computers to do tasks that humans typically do. This technology is capable of looking at large numbers of data points and absorbing them rapidly to look for trends and make inferences.
AI is being used by lawyers to perform and streamline many routine, standardised tasks. For example, lawyers can input key terms into AI-powered search algorithms such as Westlaw and LexisNexis, which then only yield precedents relevant to their case, significantly speeding up legal research. AI technology can also automatically analyse legal documents by using predictive coding software, which ‘learns’ to flag relevant documents (for legal discovery and disclosure).

Smart contracts

A smart contract is simply a piece of computer code that performs the actions of a contract or agreement, comprising conditions of “if/when… then…”. These statements enable a transaction to occur automatically, for instance, if the specified condition is fulfilled, an asset is registered.
Smart contract technology requires no middleman to authorise transactions as contracts are automatically enforced by code rather than by people, making them self-executing. As with AI, the use of smart contracts eliminates the risk of human error, accelerates the contractual process and saves lawyers and other users time and money.

Going virtual

The COVID-19 pandemic has forced lawyers into remote work, which has led to more and more work being done virtually. This virtual shift has impacted lawyers in two main ways:

For the first thing, there's been a greater use of video conferencing software, not just to communicate with other legal professionals but to meet with clients too. With more people being able to access legal services because of the increased use of virtual meetings, which eliminate costs and the environmental impact.

ATHE L5 2M1 Apply understanding of professional ethics to a situation

Answer:

Use the 5-step model of ethical decision-making to apply your understanding to a given situation in the workplace. This will help to make sure that your conduct is in line with basic principles, such as integrity, objectivity and confidentiality, and helps to limit any risks to the organisation.

Use these principles in the following order:

1.    State the Ethical Dilemma.

Explain precisely what the problem is. Which policies, laws or professional codes of conduct are being attacked?

• The point is that you observe a senior manager who is overstaffing or over-bleeding travel and entertainment costs or inflating project results to the client.

2.    Gather Relevant Facts

Gather all information that can be seen and heard and is factually correct before concluding. Identify who is involved and what internal data is involved. 

• For example, retrieve the expense reports, review the receipts and confirm the company's official travel and expense (T&E) policy.

3.    Identify Stakeholders and Potential Impacts
Consider who will be affected by the situation and actions, and how.

• Senior manager, finance department, shareholders and clients are some of the stakeholders mentioned as an example. Reporting the incident will cause a temporary disruption in the business, but if the incident is not reported, then the company's reputation and legal standing will be compromised. 

4.    Compare various options with ethical principles.

Evaluate the situation with the consideration of known ethical theories, including:

• Deontology (Duty-based): Rules and duties are followed strictly. Action: "I am responsible for reporting this, no matter what the repercussions are.
• Teleology (Consequence-based/Utilitarian): Based on results that benefit the most for the most. Action: "Reporting this will stop long-term financial audits and preserve the integrity of the company.

5.    Develop and take action

Select the best action, which is typically:

• Having an open conversation with one's line manager or Human Resources, but keeping it confidential.
• Compliant with the organisation's formal whistleblowing and/or grievance processes.
• Keeping all notes of actions and discussions to ensure adherence to principles of due care and confidentiality.

ATHE L5 2D1 Critically evaluate whether the availability of damages-based agreements and conditional fee agreements fuels a culture of litigiousness in society

Answer:

Conditional Fee Agreements (CFAs) and Damages Based Agreements (DBAs) provide access to justice to those who would not otherwise be able to afford the normal hourly charge for lawyers. Their critics say that they reward frivolous or groundless claims, but there is evidence that they are more likely to help create a more democratic legal system than a culture of litigation.

The working of CFAs and DBAs.

• Conditional Fee Agreements (CFAs): These are also referred to as 'no win, no fee' agreements. In the event of the Claimant losing the case, they do not pay any legal fees to their Solicitor. If they win, the solicitor’s standard base fee is paid, plus a "success fee" (uplift) which is capped.
• Damage-Based Agreements (DBAs): A payment style that is based on damages. The lawyer receives a percentage (up to 25% for personal injury cases and 50% for general civil cases) of the actual amount the client recovers. In the event that the case is lost, the attorney earns nothing.

Arguments that they Fuel Litigiousness

• Financial risk for claimants is not being encouraged, so critics argue that claimants are encouraged to pursue weak, frivolous or exaggerated claims, as they have nothing to lose.
• The marketing of 'no win, no fee' services by law firms and claims management companies can foster a 'compensation culture', whereby people litigate for small grievances to try and get compensation.

Counterarguments.

• Equality of Arms: those with limited means can raise challenges against powerful corporate or public defenders through the use of CFAs and DBAs.
• Rigorous Gatekeeping by Lawyers: Lawyers work on a "no win, no fee" basis with upfront expenses, so they are very motivated to only accept cases that have a solid chance of success. There's a risk of volunteering time if the claim is not valid.

UK Legal Environment.

• The courts serve as a powerful screening device for the rejection of frivolous disagreements before they go to trial, using devices such as summary judgment and strike-out.
• The legal landscape in the UK. These structures are tightly controlled in England and Wales to stop abuses of the funding.
• Changes in law, including post-Lord Justice Jackson's Review of Civil Litigation Costs, have aimed to balance access to justice with no disproportionate costs. Also, Before The Event (BTE) insurance and After The Event (ATE) insurance can be used to control the risk of having to pay an opponent's legal costs in the event of a claim in respect of a CFA-backed or DBA-backed claim failing.

 3. Understand the elements of negligence

3.1 Explain the requirement for duty of care to be established between the parties to prove negligence

Answer:

The requirements of the Tort of Negligence are:

1.    Claimant had a duty of care.

2.    There was a breach of that duty.

3.    The cause of the damage to the claimant was the breach (causation).

4.    The damage was not too far away.

Negligence - Issues

Avoid hurting others in any way.

• Positive Acts
• Omissions
• Statements
• Third Parties

Types of Harm

• Physical Damage
• Property Damage
• Financial Loss
• Psychiatric Illness

Duty of Care

The application of the concept of negligence to torts.

• As Lord Rodger has put it in D v East Berkshire Community NHS Trust [2005]: ‘the world is full of harm for which the law furnishes no remedy’ (at [100]).
• When it comes to being negligent, that's not necessarily the case.
• There is no duty of care imposed on you, so you can only be liable for the tort of negligence.

Duty of care has been established.

Donoghue v Stevenson [1932] AC 562

• Neighbour Principle
• The claimant needs to establish that the defendant had a duty of care towards them.

-    “The commandment to love one's neighbour is translated in law as “you are not to injure your neighbour” and the lawyer's question “who is my neighbour?” is given a limited answer.

-    You have a duty to take reasonable care not to do anything or to fail to do something that is "likely to" cause injury to your neighbour if you reasonably know that it might.

-    Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely  and directly affected by my act that I ought reasonably to have them in contemplation  as being so affected when I am directing my mind to the acts or omissions which are called in question."

The whole of the case of Donoghue v Stevenson was significant in several respects.

• A claim for damages may be successful even if there was no contract.
• To establish a duty of care, the ‘neighbour principle’ based on reasonable foresight must be applied. This is a bare minimum and is not enough to warrant liability.
• If a drinks manufacturer negligently allows foreign material to be introduced into a drink, then the manufacturer has a duty of care to the consumer to prevent the drink from causing injury. (narrow rule)

Donoghue v Stevenson Principle

Reasonable Foreseeability

-    If the defendant should have reasonably known that his neglect would create a risk of harm to another, then he was under a duty.

Proximity (Neighbourhood)

-    Only if the claimant was closely and directly affected by the defendant’s conduct would there be a duty of care owed.

Examples of statutory responsibilities

-    A lorry driver is operating a vehicle in a queue and gets into an accident after using his mobile phone, killing the passengers in the car in front of his lorry.

-    A nurse gives the wrong medication to a patient after a mistake with the patient's doctor's handwriting, which results in a severe allergic reaction for the patient.

-    Unfortunately, a strong candidate receives a weak reference when a University lecturer fails to read the departmental files properly when writing a reference for a student to join an Inn of Court.

-    A school caretaker injures their back falling off a stepladder when putting up decorations for the end-of-term play—the stepladder had not been properly maintained by their employer.

Duty of Care – Duty Situations:

• Employer / Employee (well established)
• Road Users / Other Road Users (well established)
• Teacher / Child (well established)
• Lecturer / Student (developing)
• Parent / Child (Well established)
• Medical Professional / Patient (in some practices developing)

3.2 Explain the requirement to prove breach of duty and the concept of the ‘reasonable person’ in tort

ANSWER:

To establish a breach of duty, the claimant must demonstrate that, on the balance of probabilities, the defendant's conduct was not of the standard that was required by law. This is determined objectively with the use of an imaginary ‘reasonable person' – a colder, more careful person, not overly cautious or reckless.

The obligation to demonstrate a breach.

It is not enough to have a duty of care; the claimant has to show that the defendant failed to meet the duty.

• Burden of Proof: Claimant must prove the breach in its entirety.
  
  
• Factual Evidence: This must include factual evidence regarding what the defendant actually did or did not do, which is to be assessed at the time of the incident, not in hindsight.
  
  
• Under certain circumstances, the accident must be so obvious that it must have been caused by negligence that the specific cause is never explained, and then the burden of proof is placed on the defendant to prove that he or she was not negligent (e.g., a surgical instrument was left in the patient).

The concept of the ‘Reasonable Person'

The standard of care does not depend on the defendant's attitude, intentions or abilities. Instead, it is measured by the objective standard, the ‘reasonable person’ (historically, the ‘man on the Clapham omnibus’):

• Ordinary Prudence: Law asks, "What would a prudent, reasonable person have done in the same situation?
• There is no Allowance for Inexperience in the standard. A learner driver is assessed to the standard of a reasonably competent, qualified driver, for instance.
• Specialist Standards: If the defendant has or claims to have a special skill (such as a doctor or a lawyer), the standard is increased to what a reasonably competent practitioner in that speciality would do (Bolam).
• Children: Children's behaviour will be assessed against the reasonable expectations of a child of the same age.

 3.3 Explain the requirement to prove causation to bring an action in negligence

Answer:

Causation is an important requirement in an action for negligence. However, it is not sufficient to show that a duty of care should have been carried out, was neglected and caused harm or loss; it is also necessary to show that the harm or loss was caused by the defendant's actions. 
In English law, it is split into two separate and sequential tests:

1.    Factual Causation

To establish a cause-in-fact connection between the defendant's breach and the damage, the claimant must prove it using the “but for” test.

• But for the defendant's negligent act or omission, would the injury or loss have happened?
• Application: If the harm suffered by the claimant was the same whether the defendant acted or not, then there is no factual causation and the claim will be dismissed.
• However, in more complex situations (e.g. medical negligence, industrial disease), the court may use the "material contribution" test. The claimant must show that the harm was caused by the defendant's negligence, which, though not the only cause, made a significant contribution to the harm.

2.    Legal Causation and Remoteness

If a causal link can be made, the court must decide whether the consequences were legally caused by the defendant.

• Reasonable Foreseeability: The type of damage or loss must be a reasonably foreseeable consequence of the negligence. Whereas if the damage is too remote or if it is totally unforeseen, the defendant will not be held liable.
• The chain of causation may be broken by an unforeseeable event, unreasonable behaviour on the part of the claimant or by the actions of a third party. If a newer event is considered to be the real cause of the last damage, the original defendant's responsibility is eliminated.

The Burden and Standard of Proof

The onus of proof for causation is on the claimant. It has to be established on the balance of probabilities (more than 50% probability that the defendant caused the harm).

3M1 Analyse whether the public policy decision not to impose a duty on statutory authorities is fair

Answer:

Under UK law, courts will not impose a general common law duty of care on statutory bodies for “pure omissions” or failure to provide a benefit. This is certainly debatable as to "fairness", and there is a balance to be drawn between individual justice for those who are harmed, and the need to be sure that public resources are not squandered and that adverse, wasteful administrative practices are not adopted. 
The Argument Against Fairness (Unfairness)

Under-enforcement of Rights: A victim of negligence does not have a right to legal action where the neglect of an authority is a contributing factor to the suffering (e.g. failing to respond to an emergency call from a victim).

Artificial distinctions: The law can be unpredictable because the courts often use an artificial distinction between an "act" (which may lead to liability) and an "omission" (which is generally unhelpful in the determination of liability).

Accountability Gap: Public bodies can act carelessly and inconsistently without penalty, eroding trust and accountability of the individual. 

The Argument For Fairnes

•  Finite Budgets: Resource Allocation: Public Bodies have limited budgets. The imposition of private law obligations would result in resources being used to defend negligence claims or to buy huge insurance policies to provide front-line services.
  
  
•  Defensive Practices: There is a danger of "defensive" decision making if the failure to prevent liability were imposed – authorities might be risk-averse, bogged down in bureaucracy or slow to respond.
  
  
•  Separation of Powers: Judges do not like to second-guess the policy decisions of elected Institutions or Government departments, since they are constitutionally responsible to the Parliament, not to the Courts.

3D1 Critically analyse whether the ‘thin skull rule’ places an unfair burden on the defendant in an action for negligence 

Answer:

Thin Skull Rule in Criminal Law

In criminal law and in some tort law systems, the legal basis of the "Thin Skull Rule" (also known as the "Eggshell Skull Rule") is applied. The rule is that the victim's frailty, weakness, sensitivity, or feebleness cannot be cited by a defendant as a defence.

Principle

A defendant is bound to take a victim as he/she finds him/her. This means that the Defendant will be liable for all of the consequences of their acts against another person, regardless of whether that person has an unknown physical condition that contributes to the severity of the damages suffered, which is greater than would be expected from a "normal" person.
For example, if a person hits another on the head, causing a brain injury that would not have occurred in a person with a normal skull, the person who hit is responsible for the brain injury.

Application

This is used in intentional tort and in negligence cases. It is also used in criminal law, where the defendant's actions are a direct cause of the victim's injury or death, even if the severity of the injury or death was caused by the victim's pre-existing condition.

4. Understand the legal principles in claims involving psychiatric harm

4.1 Distinguish between pure and consequential psychiatric harm

Answer:

The difference in tort law has to do with where the psychological trauma comes from. Consequential psychiatric harm is when mental suffering is directly caused by a physical injury. Psychiatric harm is where the claimant is not injured physically, but has developed a recognised psychiatric condition as a result of witnessing or experiencing a traumatic event.

The differences between the two are as follows:

1.    Consequential Psychiatric Harm

• Psychological trauma, including depression, anxiety, and PTSD, a direct result of a physical injury caused by the defendant's negligence.
  
  
• Legal Test: Recovery is fairly simple. Where the physical harm is foreseeable, the mental anguish that is necessarily consequent upon the physical harm is also a portion of the general damages recoverable under the rubric "pain and suffering".
  
  
• Primary Victim: The claimant is a physical victim of the negligence. The courts do not require the same “control mechanisms” that are imposed in purely mental injuries, such as proving close ties of love and affection.

2.    Pure Psychiatric Harm

• Psychiatric disorder: Known psychiatric condition (such as clinical PTSD or morbid depression) which occurred without a preceding physical injury.
• Restriction on Legal Recovery: Claimants are severely limited by courts because of public policy, such as fear of fraudulent claims or "floodgates. Claimants fall into two categories: primary victims (physically endangered, but not injured) or secondary victims (mere witnesses).
• The success of Secondary Victim involves a close relationship of love and affection between the victim and the witness, witnessing the event through the unaided senses and suffers from sudden and severe psychiatric shock. Grieving and being sad are not a lawsuit.

4.2 Explain the categories of primary and secondary victims

Answer:

Primary and Secondary Victims:

A primary vs. secondary victim distinction is a legal one, in tort law, that sets apart direct victims from indirect victims of an event.

Primary Victims

Primary victims are people who are directly involved in the accident or incident. They are the ones who have suffered physical injury or been harmed because of another's negligence or wrongful act. If someone is struck by a car, then they would be referred to as the primary victim.

Secondary Victims

Secondary victims are persons who are psychologically hurt from witnessing an incident or its aftermath, but were neither physically hurt nor involved. A secondary victim might be someone who has seen a loved one hit by a vehicle and who experiences psychological trauma, for instance.

4.3 Explain the controls for claims brought by secondary victims

Answer:

English law puts in place strict limits on unlimited liability for psychiatric harm, as illustrated in Alcock v Chief Constable of South Yorkshire Police and developed by the Supreme Court. To establish a successful claim, the secondary victim must demonstrate the following:

• Recognised Psychiatric Injury: the claimant should have a diagnosed psychological illness, rather than normal grief or stress.
  
  
• Reasonable Foreseeability: The psychiatric harm must be reasonably foreseeable to a person of 'ordinary fortitude' that psychiatric harm could be caused by the defendant's negligence.
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• Close Relationship: The claimant must have a close relationship with the principal victim (legally presumed in the case of spouse, parent and children, submitted in the case of siblings).
  
  
• Proximity in Time and Space: Claimant must see the traumatic event or immediate aftermath with the unaided senses.
  
  
• The "Accident" Requirement: The psychiatric injury must be caused by a sudden, external and shocking occurrence (for example, a car accident). In Paul v Royal Wolverhampton NHS Trust, the Supreme Court decided that witnessing a gradual medical crisis or death caused by medical negligence does not constitute an "accident" for a secondary victim claim.

4M1 Research the facts of the case of Alcock v Chief Constable of South Yorkshire 1991, and analyse whether the decision created an unfair position for rescuers who sustained psychiatric injuries

Answer:

The case of Alcock v Chief Constable of South Yorkshire Police [1991] occurred as a result of the Hillsborough Disaster of 1989. The House of Lords has decided that psychiatric injury, or nervous shock, must have occurred as a result of having a close relational connection with a victim of the accident, direct sensory exposure to it, and a close temporal and spatial proximity to the accident.

Facts of the Case

Because of police negligence, the death toll in the disaster at the football stadium at Hillsborough was 96 people, and hundreds of injuries were caused by the massive crush of people in the stadium. The relatives and friends of the victims, who saw the victims firsthand from around the stadium, or on live TV, or identified bodies in the morgue, made claims against the South Yorkshire Police for psychiatric injuries. 
All the claims were rejected in the House of Lords. They set up stringent 'control mechanisms' which the secondary victims had to meet to be successful in psychiatric injury claims:

• The claimant must be close to the primary victim (spouse, parent, or child).
• Spatio-temporal Proximity: The claimant had to be at the location of the accident or at the very scene of the accident.
• Sensory Perception: The psychiatric damage is a result of the witness seeing or hearing the event or the aftermath of the event with his or her "own unaided senses" (meaning live television or viewing of bodies many hours after the event does not count).

Unfairness to Rescuers

The principle of the Alcock case and how it was applied (such as in White v Chief Constable of South Yorkshire [1998]) created an unpopular and, perhaps, unfair situation where rescuers suffer psychiatric injury.

• Exclusion from Primary Victim Status: Rescuers who are not physically hurt and do not find themselves in the "zone of physical danger" are considered secondary victims. Thus, even if putting themselves in danger to save the lives of others, they are legally unable to obtain compensation unless they satisfy the “Alcock criteria”.
  
  
• The “Unwitting Participant” Anomaly: The law apparently punishes an uninjured rescuer more severely than an uninjured bystander who is a relative. A rescuer's psychiatric injury is typically caused by the horrific nature of the rescue and not by witnessing injury to a loved one, so he or she is not entitled to any remedy.
  
  
• The "Heroes of Today, Claimants of Tomorrow" Dilemma: In the companion case to Alcock (White), the House of Lords said there was no 'special class' of claimants to be rescued by professional or volunteer rescuers. They can not recover damages if they have only suffered psychiatric injuries unless they can show that they were personally exposed to physical danger. This puts the burden of risk on those willing to help in mass casualty situations.
  
  
• The Policy “Floodgates” Arguments: This limiting approach was based on public policy considerations, which the courts held would be impossible if psychiatric claims could be made against anyone and the floodgates were opened. The net effect of this is that those who do the acts of charity are denied justice in a manner dictated at random by the legal system, because the law is being used to restrict indeterminate liability, thus confusing the issue. The net effect is that individuals who suffer clinically recognised psychological trauma (e.g., PTSD) during the performance of acts of charity are arbitrarily denied justice.

5. Understand the remedies and defences available in a claim for negligence

5.1 Explain the availability and purpose of damages in negligence

Answer:

In negligence, the main goal of damages is to compensate the claimant for putting him/her in the same position they would have been if the negligent act (tort) had not happened. Damages will be awarded for the monetary and non-monetary damages where they are quantifiable and not too remote.

The Purposes of Damages

• Restitutio in integrum: This is the main rule of the law that the victim be restored to the state before the negligent act occurred.
  
  
• Corrective Justice: It calls for the punishment of the wrongdoer in the form of compensation for the immediate and predictable consequences of his or her failure to perform his or her duty. 

Types of damages Available

There are two categories of damages:

1.    Compensatory Damages (Financial & Physical Losses) – 1.

• Special Damages: These are financial losses that can be easily assessed and are out-of-pocket expenses that have occurred before trial. These might include medical expenses, travel, cost of care and demonstrated loss of income.
• General Damages: These are for non-financial or intangible damages that are not easily calculable in monetary terms. They can include compensation for physical pain and suffering and the inability to get the most out of daily life and hobbies – known as 'loss of amenity'. 

2.    Exemplary or Punitive Damages:

• These are rarely given in conventional negligence cases. They aim to retaliate against the defendant for conduct, more often than not, that is particularly heinous, malicious, and oppressive, and not to pay the claimant.