Recap of problem-based question

1.​ Issue
2.​ Rule / Law
3.​ Application - how they are similar or different from the cases
Distinguish the case
Facts maybe similar to the case - the problem is are they similar enough?
-​ ‘It’s similar to XYZ, but there is some difference in …’
-​ ‘So, the present case should be distinguished and should/not be applied’

Consider alternative arguments/ positions

-​ Consider facts that are not clear

Importance of normative arguments

Normative - arguing what the law should be, what you think the law should be (what
make sense and what doesn't make sense)
-​ Especially when the position is unfair to your client. In many cases, you may think
the law doesn’t make sense or is unfair.
-​ “This is the normal conclusion/result, but there would be a better position as
advocated by (authors)

4.​ Conclusion

Tort Sample essay

Issue 1: Was there any harm caused to XXX?

Property Damage? Physical change that impairs the value or utility of the property.

Legal principles:
What is personal injury? Includes any disease or impairment of physical or mental condition

In Rothwell, defined as being ‘worse off’ (also principle that it cannot be de minimis)

Dryden (review facts)

-​ Distinguishing from Rothwell
-​ Further exposure to asbestos vs further exposure to platinum salts
-​ Pleural plaques do not themselves turn into any other injury vs sensitization
turning into allergy
-​ Pleural plaques do not prevent person from engaging in partiular types of work
vs platinum sensitization restricting types of work one can do
 -​ Held: platinum sensitization was personal injury if the worse off will seriously affect their
living (work in specifical industry)

Robinson and Caparo Test

Duty of care
-​ Liable for negligence only if under legal duty to take care- owed specifically to the
C
-​ Established categories
-​ Policy - duty of care as a control device to keep liability for negligence within
acceptable limits

Historical developments
-​ Donoghue v Stevenson (1932) - neighbour principle (proximity)
-​ Anns v Merton (1978) - two stage: (i) sufficient proximity or neighbourhood (ii) any
considerations that negative/ reduce/ limit duty
-​ Caparo v Dickman (1990) - tripartite test (no longer consider after Robinson)
(1) reasonably foreseeablity
(2) sufficient proximity (the relationship is close/important enough to generate a
duty of care.
(3) whether imposing duty would be “fair, just and reasonable”
-​ Rejection of Caparo as a general test - Robinson v Chief Constable of West
Yorkshire Police (review facts)

Case Reilly v Merseyside Regional Health Authority

Facts C got stuck in an overcrowded hospital lift for an hour due to the defendant's
negligence, which caused them to suffer anxiety and distress

Rule Mere emotional distress without recognizable/ identifiable psychiatric

illness/condition is not actionable in negligence.

Case Rothwell v Chemical & Insulating Co

Facts

Rule To be recoverable, psychiatric illness must be caused by an immediate shock

not a delayed one

Case Dryden v Johnson Matthey plc

Facts

Rule Platinum sensitization was personal injury if the worse off will seriously affect
their living (work in specifical industry)

Psychiatric Injury

Case McLoughlin v O'Brian

Facts a road accident caused by the defendant’s negligence killed the claimant’s
young daughter and caused injuries of varying severity to other of her
children and to her husband. An hour later the accident was reported to the
claimant by a friend who drove the claimant to a hospital at which the
claimant was told of the death and saw the injured members of her family in
circumstances which, it was found, were “distressing in the extreme and
were capable of producing an effect going well beyond that of grief and
sorrow”.

Rule

Case Alcock v Chief Constable of South Yorkshire Police

Facts

Rule Distinguish from Mcloughlin: ​

- visit to the mortuary were 9 hours later (compared to 1 in Mcloughlin)
- the purpose was formal identification vs aid and comfort in Mcloughlin

Case White (and Frost) v Chief Constable

Facts Four policemen claimed compensation for psychiatric injury suffered as a

result of tending victims of the Hillsborough disaster, an event which arose
from their employers’ negligence.

Rule Primary victim: must satisfy the threshold requirement that he objectively
exposed himself to danger or reasonably believed he was doing so) (in other
words, zone of danger)
Rescuers (i.e. police officers) do not equate to primary victims (if they were
not in the zone of danger

Psychiatric Injury analysis

Issue 1: Does Emma have any claim against George?

1)​ Does XXX suffer from a recognized form of psychiatric illness

a.​ Legal principle: Mental injury that is not consequential upon a physical injury is not
compensable unless it amounts to a recognized psychiatric illness ​
1. 一係mental injury 係因physical injury 而導致 (Hinz v Berry: No damages are to be
given for the worry)
2. 一係佢係recognized psychiatric illness
(whether C have suffered from mental/psychiatric illness – look at daily function
impaired) ​
Can say: Need more information to see whether she is suffering from clinical
depression or PTSD or some other form of recognized mental illness, although there
do seem to be symptoms of it – especially in terms of impairment of daily function.

b.​ Application: Emma suffered psychiatric harm in that she was depressed and has
suffered a miscarriage (nervous shock covers physical harm caused by nervous
shock) (although there may be a question about causation → whether George’s
negligence directly caused her miscarriage)​
May also consider whether it is clinical depression or just sadness

2) Is XX a primary victim?
a.​ Alcock v Chief Constable of South Yorkshire Police describe primary victim as those
where “injured plaintiff was involved, either mediately or immediately, as a participant”
in what happened.​
White v Chief Constable of South Yorkshire - must “satisfy the threshold requirement
that he objectively exposed himself to danger or reasonably believed he was doing
so) (in other words, zone of danger)

b.​ Application​
XXX was/ was not a participant in what happened, in that case he was/ was not in
the zone of danger​
XXX also did/ did not reasonably believe that he was in danger​
Try to find facts to prove so, eg: Emma was unlikely still in danger since elderly man
was allowed to help with identification - likely no danger anymore

3) Whether XXX is secondary victim

a.​ Legal principles: Alcock describes secondary victims as those who are “no more than
a passive and unwilling witness of injury caused to others”
3 factors (all three factors need to be fulfilled)
-​ Close ties of love and affection
1.​ Presumed relationship (Husband and Wife, parent and child)
2.​ Left open by 3 judges in Alcock that sufficiently horrific event might
be enough (though doubt cast upon this is McFarlane)
-​ Proximity to the event (time and space)
​ Mcloughlin: 1 hour → ok​
​ Alcock: 9 hours → not ok​
​
-​ Perceived event or immediate aftermath via unaided senses (sudden
appreciation by sight or sound of a horrifying event)
White and McFarlane – held that there is no special category for rescuers - police
officers also subject to rules re secondary victims.

b.​ Application: Because there is no special category for rescuers, Emma is also subject
to Alcock rules.
XXX was a witness of injury caused to Harry. She was proximate in time and space
given she was first police officer to arrive on scene, and there was no issue
perceiving the event via her unaided senses.

Biggest problem – she did not have any close ties of love and affection with Harry –
BUT if argument about sufficiently horrific event can still be made in light of
McFarlane, she might be able to make this argument given how horrific Harry’s
corpse was. (Harry’s corpse was seriously burnt, which could potentially be
sufficiently horrific event)

Pure economic loss

Case Murphy v Brentwood

Facts

Rule If negligent construction of property causes actual physical harm to C’s

property, she will have a claim for property damage against the builder.

Case Hedley Bryne

Facts

Rule If negligent construction of property causes actual physical harm to C’s

property, she will have a claim for property damage against the builder.

Case (SAAMCO Principle)ASSETCO PLC v GRANT THORNTON UK LLP

Facts

Rule If an adviser is instructed by a client to advise whether to enter into a

 transaction, and is negligent in going so, the client is entitled to recover all
losses flowing from entering into the transaction.
However, if an adviser is providing information or a piece of advice which is
only one of many factors taken into account by the client, before it makes its
own decision to enter into a transaction, then the advisor is only liable for
the financial consequences of that information/piece of advice being
incorrect – regardless of the significance of that information/piece of advice
to the client's decision.

Pure economic loss definition: No physical injury or property damage, and in context of
defective property, so pure economic loss
Eg. money wasted in reliance on negligent advice; lost opportunities to profit

Pure Economic Loss Analysis

Whether
-​ Pure economic loss is generally not recoverable as financial loss generally only
recoverable if it is a consequence of physical injury to C or damage to C’s property

-​ (Defective property) In the context of defective property- where no actual physical

harm to person or property, loss caused by need to repair defective property to
obviate danger to person or property is financial loss. In the absence of a special
relationship, builders are not subject to duty of care in relation to quality of work
(Murphy v Brentwood DC)
-​ Pure economic loss may also be recoverable if incurred following negligent
misstatement where D owed a duty to safeguard C against the kind of loss.
According to Hedley Byrne (review facts) - recoverable where:
-​ D possesses a special skill
-​ D gives advice based on that special skill
-​ D knows (or ought to know) that C is likely to rely on the advice
-​ C reasonably relied on the advice
-​ C suffered loss as a result of inaccuracy of advice

-​ Negligent misstatement?
-​ Special skill? They are builders so arguably possess special knowledge and
expertise about building property
 -​ D gave advice on basis of that skill by reassuring Mary that ‘executive homes’
stand on very solid foundations of the highest specification and they would be
a great home for anyone
-​ D should know that Mary will rely on the advice, although arguable if they
know her background
-​ Did Mary reasonably rely on the advice? Mary used to work in the property
sector as an estate agent, should have knowledge about these matters?
Depending on how you argue regarding knowledge asymmetry. (e.g. estate
agent only know about property prices)
-​ Suffer loss? She needs to be spend 700,000 to make house liveable. ALSO -
if she wants to sell the property, it will be worth significantly less

-​ Bolam principle: where it is alleged that harm caused by D’s failure to properly
discharge his professional obligations, D will have discharged his duty of care if what
he did was supported by a responsible body of opinion within that profession.

The case of Bolam v Friern Hospital had established that professionals will not be in breach
of their duty if they acted in accordance with practices accepted as proper by a responsible
body of other medical professionals with relevant expertise.