TMA 02: This TMA is designed to test your knowledge of Units 6, 7, and 8

TMA 02

Introduction

Cut-off date: 12:00 midday (UK local time) on 6 June. This is the latest date by which your TMA must reach your tutor. You must submit your TMA using the online TMA system.

Word count: The total word limit for TMA 02 is 1500 words. All the words you use to answer the questions, including quotations and citations, are included in your word count. You must include an accurate word count at the end of your assignment. Any words used that exceed the overall word count for the TMA will not be marked or commented on.

You must provide a reference list. The reference list is not included in the word count.

This TMA is designed to test your knowledge of Units 6, 7, and 8.

TMA 02 is worth 20% of your overall assessment score for the module. For more information on module assessment, see Section 3.2 of the W112 Module Guide.

TMA 02 consists of three questions. You are expected to answer all questions in this TMA. Your answers should be written in your own words.

It is recommended that you answer the questions using approximately the number of words shown in Table 1.

On the following pages you will find:

the learning outcomes for this assignment are the three questions that make up the assignment general advice on how to approach the TMA specific advice on how to approach each question.

Ensure you read each question and all of the advice carefully before beginning work on the TMA.

Learning outcomes

This TMA allows you to demonstrate the following learning outcomes:

Knowledge and understanding:

the law of negligence.

Skills:

apply legal authority to develop reasoned answers to questions communicate ideas clearly and concisely in writing reflect on your own learning and development.

Questions

The following pages set out the questions for this assignment.

You must ensure that you have read the learning outcomes and the advice given for these questions before starting work on your assignment.

Question 1

Read the scenario in Box 1 and answer the questions that follow.

Box 1 Le Navet

Le Navet is a restaurant that uses local ingredients, including wild and foraged food from the nearby area. Harry is an employee of the restaurant and has been asked to join a ‘fungus foray’ in the countryside. Harry is a novice explorer but is confident in selecting the correct types of edible mushrooms. He picks several mushrooms from a woodland floor, and takes them back into the restaurant, placing them in the tub used for Le Navet’s famous mushroom risotto.

Later that evening Jude and Jamal dine at Le Navet. Jamal orders the mushroom risotto. Horatio, the chef, does not check the mushrooms, but simply throws them into the dish to be served to Jamal. Later when Jamal returns home, he begins to feel very ill and develops a high fever. He calls an ambulance and is taken to the hospital.

The hospital identifies the mushrooms as being poisonous. Jamal is administered some drugs and slowly begins to recover.

During the following night, Jamal is walking through the hospital in the dark. He is not paying attention to what he is doing and accidentally falls down a flight of stairs, breaking his arm.

Jamal has to have an operation to repair the break. Pins will be placed on his arm. Mr. Keane, the surgeon, neglects to inform Jamal that one of the pins will be placed close to a nerve and could cause nerve damage. Mr. Keane understands this to be a small risk with this type of procedure. Jamal experiences nerve damage following the operation and loses some control over his hand. Jamal states afterward that he may not have had the operation had he known the risk.

Explain whether Jamal has a claim of negligence against Le Navet for being poisoned. Assume that LeNavet is vicariously liable for the acts of its employees.
Explain whether the actions of Mr. Keane caused loss to Jamal. You do not need to discuss the duty of care and breach in examining this issue.

(50 marks)

Question 2

Write

an essay introduction of no more than 150 words
an essay plan

in response to the following:

Evaluate whether it is appropriate to have a category of ‘secondary victims’ in cases of psychiatric harm.

Note that you do not need to write a full essay for this part of the assignment.

(40 marks)

Question 3

Using Gibbs’ reflective cycle reflect on one piece of feedback you were given in the marking of your TMA 01 in either your script or the summary feedback form.

How did you use this feedback to improve the writing of your assignment in TMA 02, and do you feel you were successful? (10 marks)

Advice

The following pages set out the advice on how to approach this TMA. Ensure you read both the general advice and the question advice.

General advice

The Law undergraduate guide contains definitions of words used in TMA questions. It also gives advice on intext citations and the reference list that you must produce and include at the end of your work. You should read this guide before attempting TMA 02. Note that Section 7.3 of the guide tells you how your TMAs need to be presented and Section 12 of the guide details the marking scale, against which your work will be assessed.

For this assignment you should:

Write in your own words.

Answer all three questions.

Answer each question separately, but note you do not need to start a new page for each question.

Use numbers in brackets to identify each question.

Write all your answers in standard English using full sentences and paragraphs. They should not include any sort of list, with the exception of the essay plan in question 2b where you should follow the specific instructions.

Write in the third person in your answers to Questions 1 and 2. This means you should not write in the first or second person (e.g. ‘I’, ‘we’, ‘my’, ‘our’, ‘you’ or ‘your’); instead you should use phrases such as ‘A person is …’ or ‘This answer will …’.

Write in the first person for Question 3, as it is a personal reflection and so you should use ‘I’ or ‘my’.

Check your TMA carefully before submission, ensuring that you correct any spelling or grammar mistakes.

Provide a reference list at the end of your assignment and a word count.

Using feedback

When your marked TMA is returned, you should reflect on your tutor’s comments and make notes on anything you want to do differently for TMA 03.

Question 1 advice

Question 1 is a problem-style question. You were introduced to problem-style questions in Section 7 of Unit 3, where you were also introduced to the IRAC structure in Sections 7.1 and 7.2 . You should use the IRAC method when answering this question.

When writing your answer, you need to include a short introduction and conclusion as set out in the guidance for problem questions. You need to cite relevant case law, including providing case citations in the footnotes. An example can be found in the Cite Them Right version of OSCOLA. It is important that you state clearly how the law applies and what your conclusion is.

You do not need to use additional information from elsewhere and you will not be credited for doing so.

First, you need to establish whether there is negligence in the case of Le Navet and Jamal. You will find the material for this answer in Units 6 and 7. In examining whether there is negligence you need to establish whether there is a duty of care and a breach of that duty. Both are covered in Unit 6. Unit 7 concerns causation, and you need to establish whether the serving of the poisonous mushrooms caused the harm experienced by Jamal. For this, you need to establish whether there is both factual causation and legal causation.

Second, you need to establish whether Mr. Keane negligently caused the injury to Jamal. This part of the question only concerns causation, information for which can be found in Unit 7 of the module materials. For this, you need to establish whether there is both factual causation and legal causation.

Question 2 advice

For part (a) of this question, you are asked to write an essay introduction. This is so you can develop skills in providing an appropriate academic introduction to an essay. You should refer to the guidance in Section 6.1.3 of the Law undergraduate guide when writing your introduction. This question is designed for a longer essay, so you may follow the advice provided for longer essays in the guidance.

Unit 8 contains the content you will work with for this answer. You do not need to use additional information from elsewhere and you will not be credited for doing so.

For part (b) of the question, you are asked to provide an essay plan. You should outline how your essay should be structured using the advice on answering essay questions provided in Section 6.1.3 of the Law undergraduate guide and Section 9 of Unit 2.

When writing your essay plan it is important that you do not write an essay, but equally, it is important that you do not write a plan that is so rough that the reader is unable to see what the content of your essay will be. You can use bullet points when outlining what your planned content is.

Although this is an essay plan, when you are citing cases or legislation, you should include the full name and the relevant case citations or sections from legislation accurately (if and when appropriate) as you would if you were writing an essay.

Unit 8 contains the content you will work with for this answer – in particular, Section 5 which concerns primary and secondary victims. You do not need to use additional information from elsewhere and you will not be credited for doing so. You can imagine that you are planning to write a longer essay, so again you may follow the advice provided for longer essays in the guidance.

Question 3 advice

This is a reflective question using Gibbs’ reflective cycle, which was introduced in Unit 1. When reflecting on how you have used feedback, you should consider:

What was the feedback you received?

How did you feel about applying this feedback to TMA 02?

Was the process of applying the feedback a good one or a bad one?

What else could you have done to improve upon the process you took?

What will you do differently next time?

It is important that you cover all of these points when writing your answer, and that you provide a considered and honest reflection.

Application of the assessment guidance

The categories below provide information for how the knowledge and skills in this question will be evaluated when marking your work, based on the general marking guidelines in Section 12 of the Law undergraduate guide.

Mark Question 1 Question 2 Question 3

Range

85–

100%

An answer in this band will show an excellent understanding of the application of the law of negligence. There may be minor errors.

The writing style will be fluent and clear, with an effective introduction, main body and conclusion provided.

An answer in this band will show an excellent approach to writing an introduction and essay plan on the issue of psychiatric harm. There may be minor errors.

The answer will show an excellent ability to reflect on feedback received in

TMA 01. It will follow Gibbs’ reflective cycle.

70–

84%

An answer in this band will show a thorough understanding of the application of the law of negligence but may have some gaps and/or errors.

The writing style will be fairly clear, with the structure for a problem question generally observed.

An answer in this band will show a thorough approach to writing an introduction and essay plan on the issue of psychiatric harm but may have some gaps and/or errors.

The answer will show a good ability to reflect on feedback received in

TMA 01. It will follow Gibbs’ reflective cycle.

55–

69%

An answer in this band will show a satisfactory understanding of the application of the law of negligence, but with flaws and gaps.

The writing style may be unclear and the essay style and structure may not be well applied.

An answer in this band will show a satisfactory approach to writing an introduction and essay plan on the issue of psychiatric harm, but with flaws and gaps.

The answer will show a satisfactory ability to reflect on feedback received in

TMA 01. Use of Gibbs’ reflective cycle may be incomplete.

40–

54%

An answer in this band will show a basic understanding of the application of the law of negligence and may provide a brief and limited explanation of it, with significant gaps and errors.

The writing style will be basic and not always clear and consistent.

An answer in this band will show a basic understanding of how to write an introduction and essay plan on the issue of psychiatric harm.

The answer will show a general

ability to reflect on feedback received in

TMA 01. Use of Gibbs’ reflective cycle may be incomplete or nonexistent.

30–

39%

An answer in this band will include some content relevant to the application of the law of negligence but this will be vague and general, and not provide more than a basic and flawed definition of the principles. There will be errors and misunderstandings of the material and the law.

The writing style may be disjointed and confused.

An answer in this band will include some relevant content but this will be vague. There will be errors and misunderstandings of the law.

The writing style may be disjointed and confused.

The answer may demonstrate limited ability to reflect on feedback received in

TMA 01. Use of Gibbs’ reflective cycle will be nonexistent.

15–

29%

An answer in this band will largely fail to address the question. It may show a very basic grasp of the areas of law raised by the question but will not define or explain these effects.

An answer in this band will largely fail to address the question. It may show a very basic grasp of the areas of law raised by the question. The writing style will be poor.

The answer will demonstrate an extremely limited ability to reflect on feedback received in

TMA 01. The use of Gibbs’ reflective cycle will be nonexistent.

1–

14%

An answer in this band will contain no relevant content and will not address the question set in either part. It will not raise relevant points and will demonstrate little or no knowledge. It may be very short.

An answer in this band will contain no relevant content and will not address the question set in either part. It may be very short.

An answer in this band will not attempt to address the question.

An answer in this band will not attempt to address the

The solution to Question 1 and Question 2

Question 1

Whether Jamal has a claim in negligence against Le Navet for being poisoned

Issue:

Under the law of negligence, Le Navet is guilty of breaching the duty of care towards their client Jamal by serving him poisonous mushrooms. In the context of common-law vicarious liability is the concept of rendering the employer liable for the torts of the employee which occur in the course of the employee’s employment.

Rule:

The law of negligence is concerned with civil wrongs. For a negligence claim to stand, the claimant must substantiate several issues. First, the claimant must prove that the defendant owed the plaintiff a duty of care. In Donoghue vs Stevenson[1], the court established the duty and held that liability for reckless behavior existed as a general obligation to reasonably care to shun omissions or acts which could be reasonably foreseeable as likely to cause harm to one’s neighbor. The neighbor in this case would describe individuals so directly or closely affected by the responsible party’s behavior to the extent that the obligated party is compelled to reasonably have them in mind when acting. In Caparo vs Dickman,[2] it was held that a duty of care could be established if the plaintiff could prove the foreseeability of the damage suffered.

Secondly, after proving duty of care, the plaintiff must substantiate it was the defendant’s fault. To establish the defendant’s fault, the standard of care requires that the defendant’s action be weighed against what a reasonable person old do in the defendant’s occupation profession, or activity in question.

Thirdly, after proving that the defendant was in breach, the claimant must prove that the damage suffered arose directly from the defendant’s breach of duty. The “but-for” test would have to prove if the claimant would not have suffered damage or loss but for the defendant’s tort. If yes the defendant would be free of liability but if not the defendant will be held liable.

Fourthly, after satisfying the “but for test” the plaintiff must substantiate that the damage suffered was not too removed from the negligence of the defendant. The harm to the plaintiff must not be caused by a third party or the claimant himself. Otherwise, it will be ruled that the chain of causation was broken between the act of negligence by the defendant and the damage the climb and suffered.

Finally, in Gregg vs Scott,[3] it was established that the damage caused to the claimant must be recoverable under the law of negligence.

Application:

Under Donoghue, the restaurant Le Navet owed Jamal, its client, a duty of care. Under Caparo, there was proximity between Le Navet and Jamal in a hotelier-customer relationship. Under the circumstances, it would be reasonable, fair, and just to impose liability on Le Navet. Under the “but-for” test, the restaurant was directly responsible for the poisoning Jamal suffered. The harm Jamal suffered was not caused by a third party or the claimant himself. Under Gregg, Jamal is entitled to full compensation which could entail pecuniary loss or non-pecuniary loss because the damage is compensable under the law of negligence.

Conclusion:

From the foregoing, Le Navet’s standard of care weighed against what a reasonable hotelier would adopt in that hotelier or restaurant capacity shows that the restaurant owed the claimant duty of care. As a result, the courts would consult the standards of practice set by the hotelier or restaurant profession and award damages for the harm Jamal suffered.

Whether the actions of Mr. Keane caused loss to Jamal

Under the ‘but for a test, the claimant has to substantiate suffering the damage because the defendant breached a duty of care. Would Jamal have suffered nerve damage and loss of some control over his hand but for Mr. Keane’s tort? An answer in the affirmative removes liability from the defendant (even if the defendant acted negligently) but if the answer is no then the defendant will be held liable because the causation test is satisfied. The ‘but-for’ test can be a straightforward matter. However, in Fairchild vs Glenhaven Funeral Homes[4], it was established that the claimant was unable to point to the date they contracted cancer due to asbestos exposure. If causation cases are difficult to establish, the causation rules may be relaxed. However, under the circumstances, Jamal’s harm at the hands of Mr. Keane falls under normal causation rules. Hence, the actions of Mr. Keane caused the loss.

Question 2

An Essay Introduction: Whether

Secondary victims are persons who incur psychiatric harm from witnessing shocking sudden events happening to others with whom they share a close bond of affection and love.

It is appropriate to have a category of ‘secondary victims’ in cases of psychiatric harm. In Alcock v Chief Constable of South Yorkshire Police[5], it was established that secondary victims were unwilling and passive witnesses of injuries others experience. Some of the control mechanisms are: the claimant must have suffered psychiatric injury from witnessing death or injury or extreme discomfort or danger to the primary victim, the injury must have arisen from unexpected and sudden shock, they must have been close ties of affection and love between the primary and secondary victims, the claimant must have been present at the place of the occurrence of the event or must have witnessed the post-occurrence of the event a short time later, and the injury claim and suffered must have been reasonably foreseeable. In secondary victim claims, the claimant may have to consider a Taylor defense as established in Taylor v A. Novo Ltd.

Essay Plan

Introduction

Distinguishing a primary from a secondary victim.

Paragraph 1

The birth of the control mechanisms: McLoughlin v O’Brian [1983] AC 410, Lord Wilberforce
The establishment of the control mechanisms: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

Paragraph 2

Idea: The “control mechanisms”.

Explanation

Close ties of love and affection

A shocking and horrifying event

Proximity in time and space to the event

Direct perception of the event or its immediate aftermath

Paragraph 3

Idea: Causation of Secondary victim concept.

Achieving:

What a claimant has to prove.

Apportionment.

Paragraph 4

Dulieu v White [1901] KB 669 (pregnant barmaid, premature birth after carriage crash into pub).
Hambrook v Stokes [1925] 1 KB 141 (lorry careers out of control towards claimant’s children).

Bourhill v Young [1943] AC 92 (pregnant claimant, stillbirth aftershock of motorcycle crash).

Conclusion

For a secondary victim’s case to succeed with their claim in the courts, the claimant must successfully prove and be guided by the guidelines in Alcock.

References

[1] [1932] UKHL 100

[2] [1990] UKHL 2 i

[3] [2005] UKHL 2

[4] [2003] 1 AC 32

[5] [1991] UKHL 5, [1992] 1 AC 310