Teachers’ Guide – H418/02 Law making and the Law of Tort
Overview of the topic
The basic format of this planning guide is to take the topics in the order that they are listed within the specification. Throughout this planning guide, relevant
cases are suggested. There is no expectation that students should attempt to learn all the cases listed 'per topic' here. They are for teacher guidance –
especially non-specialist teachers. Teachers are, of course, free to use their own preferred cases and determine the number of cases students should learn
per topic based on their own circumstances.
The law making section of the specification is designed to take approximately 27 hours of teaching time while the law of tort section of the specification is
designed to take approximately 46 hours of teaching time. This guide will provide an overview of how this content might be taught in that timeframe. The
planning guide does not contain activities. This is intentional to enable you to choose a series of activities that compliment your own teaching.
Teachers may use this guide as an example of one possible way of approaching the teaching of the specification content for law making and
the law of tort and NOT a prescriptive plan for how your teaching should be structured.
What this guide is intended to do is to show you what the teaching outline might look like in practice. It should then help you to build your own
scheme of work, confident that you’ve covered all the required content in sufficient depth.
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Planning guide – H418/02: Law making (28 hours)
Specification content
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Suggested
resources
Parliamentary law making
2 hours
Legislative process - Green
and White Papers, different
types of Bill, legislative
stages in the House of
Commons and the House of
Lords and the role of the
Crown
Learners should know the key stages of the legislative process
and be able to give a short description of each:
 Green Paper – consultation document
UK Parliament
How are laws
made?
 White Paper – firm proposals
 Public Bill – affects the public as a whole
Equality Act 2010
 Private Bills – affect one particular area, organisation or
institution
 Private Members’ Bills – Bills introduced by individual MPs –
usually non-party political issues
Legislative
process British Railways Act 1969,
University College London Act 1996 https://www.youtu
be.com/watch?v=
Abortion Act 1967 (David Steel)
g5CJNLRqZXs
 Hybrid Bills, Ten-minute rule Bills and details about prelegislative procedures in either House will not be required
 First Reading – formality only. Bill’s name read out
 Second Reading – main debate and vote
 Committee Stage – detailed scrutiny
 Report Stage – any amendments reported back
 Third Reading – final vote – mainly a formality
 Repeat Process in ‘the other House’
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 Bill passes back and forth between houses until consensus is
reached (Ping Pong) – outline description only
Suggested
resources
Parliament Acts 1911 & 1949
 Royal Assent – Monarch approves the Bill
 No need to give a detailed account of the Parliament Acts
1911 & 1949. No need to cover commencement
Advantages and
disadvantages of the
legislative process
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 Questions may be based on both advantages and
disadvantages or one alone. As a useful guide, aim for four to
five properly developed arguments with supporting examples
(where appropriate) and a reasoned and justified response to
the question (where required). Advantages can be used in a
disadvantages question and vice versa but only where it is
used as a counter-argument. Common themes include
considering impact on major constitutional theories such as
Parliamentary Sovereignty, Judicial Creativity, Rule of Law
and Separation of Powers.
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Delegated legislation
4 hours
Types of delegated
legislation: Orders in
Council, Statutory
Instruments and By-laws
 Brief description of each type of delegated legislation with a
supporting example for each
UK Parliament
 By-laws
o
By local authorities
Local Government (Miscellaneous
Provisions) Act 1982
o
By public corporations
South West Trains Limited Railway
Byelaws (made under s129 of the
Railways Act 1993)
 Orders in Council
Northern Ireland (Restoration of
Devolved Powers) Order 2000
made under the Northern Ireland
Act 2000
 Statutory Instruments
The Gaming Act (Variation of
Monetary Limits) Order 1999 was
made under the authority of the
Gaming Act 1968
 Legislative Reform Orders, Henry VIII powers, Orders of
Council would be credited but are NOT required. Furthermore,
exhaustive accounts of multiple types of statutory instrument
(Codes, Orders, Regulations, Rules etc) with examples are
not required
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Controls on delegated
legislation by Parliament
and the courts, and their
effectiveness
Relevant cases/statutes
Suggested
resources
Brief description of each major parliamentary control and the main
heads of judicial review
Parliamentary
 Approval Parent Act
o Consultation
o Publication
o Revocation
o Amendment
Statutory Instruments Act 1946
 Process
o Negative Resolution Procedure
o Affirmative Resolution Procedure
 Scrutiny by Committee, for example:
o Secondary Legislation Scrutiny Committee
o Delegated Powers and Regulatory Reform Committee
o Joint Committee on Statutory Instruments
Scrutiny
Committee (see
also ‘other
committees’ in
right-hand panel)
Judicial
 Basic explanation of judicial review and the concept of ultra
vires
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 Procedural Ultra Vires
Agricultural Training Board v
Aylesbury Mushrooms (1972)
 Substantive Ultra Vires
R v Secretary of State for Social
Security ex parte Joint Council for
the Welfare of Immigrants (1996)
 Irrationality or ‘Wednesbury Unreasonableness’
Associated Picture Houses v
Wednesbury Corporation (1948)
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 Credit given for Human Rights as a head of judicial review but
not required
Suggested
resources
In 2019 the Northern Irish abortion
law was found to be incompatible
with the Human Rights Act 1998
 You do not need to cover procedures, locus standii or
remedies for judicial review
 The effectiveness of controls on delegated legislation – this is
an AO3 requirement. Questions may be based on any
combination of both effectiveness and/or ineffectiveness of
parliamentary and/or judicial controls. As a useful guide, aim
for four to five properly developed arguments with supporting
examples (where appropriate) and a reasoned and justified
response to the question (where required).
Reasons for the use of
delegated legislation
 As a useful guide, aim for four to five reasons why delegated
legislation is needed presented as developed points with
supporting case law and/or statutes where required. Common
themes here include impact on (and of) major constitutional
theories as well as pragmatic issues relating to speed,
efficiency and flexibility.
Advantages and
disadvantages of delegated
legislation
 Questions may be based on both advantages and
disadvantages or one alone. As a useful guide, aim for four to
five properly developed arguments with supporting examples
(where appropriate) and a reasoned and justified response to
the question (where required). Advantages can be used in a
disadvantages question and vice versa but only where it is
used as a counter-argument. Again, common themes here
include impact on (and of) major constitutional theories as well
as pragmatic issues relating to speed, efficiency and flexibility.
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Statutory interpretation
6 hours
Rules of statutory
Brief description of the operation of each rule, any relevant
interpretation: the literal rule, features and examples:
the golden rule and the
 The Literal Rule
mischief rule
o Definition and examples of how the rule produces
different outcomes
 The Golden Rule
o Narrow - definition
o Wide - definition
R v Bentham (2005)
LNER v Berriman (1946)
Whitely v Chappell (1868)
Cheeseman v DPP (1990)
R v Allen (1872); Adler v George
(1964)
Re: Sigsworth (1935)
 The Mischief Rule (or the rule in Heydon’s Case)
o Definition and example
Smith v Hughes (1960); RCN v
DHSS (1981)
 Do not cover ‘the need for statutory interpretation’.
The purposive approach
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 Brief description of the operation of the approach, contrast
with literal approach, any other relevant features and
examples
o
Definition
o
o
Background in EU Law
Relevance to parliamentary supremacy
Jones v Tower Boot Co (1997); R v
Registrar General, ex parte Smith
(1990); R (Quintavalle) v HFEA
(2003)
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Intrinsic and extrinsic aids to Brief description of some of each with examples where
interpretation
appropriate
 Intrinsic aids
o
Preamble
o
Short title
o
Long title
o
Marginal notes
o
Headings
o
Interpretation sections
o
Punctuation
o
Schedules
 Extrinsic aids
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o
Previous Acts of Parliament (on same/similar area)
o
Historical setting
Most mischief rule cases are
suitable
o
Dictionaries
Cheeseman v DPP (1990)
o
Pre-legislative documents
o
Green Paper
o
White Paper
o
Travaux preparatoires
o
Interpretation Act 1978
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Impact of European Union
Law and the Human Rights
Act 1998 on statutory
interpretation
Advantages and
disadvantages of the
different rules and
approaches to statutory
interpretation
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Relevant cases/statutes
o
Explanatory notes
o
Law Commission Reports
Tomlinson v Congleton BC (2004)
o
Law Reform Reports
Black Clawson Case (1975)
o
Hansard
Pepper v Hart (1992)
o
International Conventions
Fothergill v Monarch Airlines (1981)
o
Works of leading academics
Dunlop v Selfridge (Pollock) (1915)
Suggested
resources
 Need only cover this in outline, it will not be expressly
assessed as a discrete question but impliedly as part of the
questions on the literal and purposive approaches (above)
 Supremacy of EU Law
R (Factortame) v SoS for Transport
(1991)
 Position re: Human Rights Law
s.3 HRA (1998); Mendoza v
Ghaidan (2004)
Questions may be based on both advantages and disadvantages
or one alone. As a useful guide, aim for four to five properly
developed arguments with supporting examples (where
appropriate) and a reasoned and justified response to the
question (where required). Advantages can be used in a
disadvantages question and vice versa but only where it is used
as a counter-argument. Common themes include considering
impact on major constitutional theories such as Parliamentary
Sovereignty, Judicial Creativity, Rule of Law and Separation of
Powers. Other common themes might include reflecting on the
way different outcomes can be produced by the application of
different rules to the same case facts and offering critical
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commentary on a case-by-case basis where the rules have
produced harsh, unjust, absurd or unwelcome outcomes.
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Judicial precedent
6 hours
The Doctrine of Precedent
including stare decisis, ratio
decidendi and obiter dicta
Learners should be able to explain in outline
 The doctrine of stare decisis
 The relevance of a court hierarchy
 The relevance of law reporting
 The status of the judgment based on the seniority of the court
 What the ratio decidendi and obiter dicta are with case
examples to illustrate
R v Howe (1987) & R v Gotts
(1992)
The hierarchy of the courts
Explain both the civil and criminal court hierarchies and
including the Supreme Court appreciate their relevance to stare decisis
Be able to explain and illustrate (with relevant cases), the
exceptions to the general rule of stare decisis in:
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 The UK Supreme Court under Practice Directions 3 & 4
(formerly the Practice Statement 1966) including
circumstances where there is a conflict between a decision of
the UKSC and a conflicting decision of either the CJEU or the
ECtHR
London Street Tramways (1898) &
Austin v London Borough of
Southwark (2010)
 The Court of Appeal under the doctrine set out in Young v
Bristol Aeroplane (and where a criminal case is being
considered) including circumstances where there is a conflict
between a decision of the Court of Appeal and a conflicting
decision of either the CJEU or the ECtHR
Young v Bristol Aeroplane Co Ltd
(1944);R v Gould (1968)
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UK Supreme
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 There is no need to cover the Court of Appeal’s historic
resistance to the doctrine of stare decisis in relation to being
bound by the UKSC (formerly the House of Lords)
Binding, persuasive and
original precedent;
overruling; reversing;
distinguishing
Describe and illustrate with cases the types of precedent and the
methods used by judges when dealing with such precedents:
Types of precedent:
 Original
Re: S (adult: refusal of medical
treatment) (1992)
 Binding
Any leading UKSC case
 Persuasive – different types
o
Courts lower in the hierarchy
R v R (Rape within marriage)
(1991)
o
Decisions of the Judicial Committee of the Privy
Council
The Wagon Mound (No1) (1961)
o
Statements made obiter dicta
R v Howe (1987) & R v Gotts
(1992)
o
Dissenting judgments
Lord Denning’s dissenting judgment
in Candler v Crane, Christmas & Co
(1951) was later upheld in Hedley
Byrne v Heller (1963)
o
Decisions of courts in other countries
Bazley v Curry (1999) is a
Canadian case considered in Lister
v Hesley Hall Ltd (2001)
 Function of ‘reasoning by analogy’ in outline
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Hunter v Canary Wharf (1997) &
Aldred’s Case (1610)
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Methods of handling precedents:
 Following
Advantages and
disadvantages of precedent
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 Overruling
Any ‘pair’ of Practice Direction
cases (e.g. R v Jogee (2016)
overrules R v Powell & English
(1999))
 Reversing
Sweet v Parsley (1970) (HL
overrules CoA in same case on
appeal)
 Distinguishing
Balfour v Balfour (1919)
distinguished in Merritt v Merritt
(1971)
 Questions may be based on both advantages and
disadvantages or one alone. As a useful guide, aim for four to
five properly developed arguments with supporting examples
(where appropriate) and a reasoned and justified response to
the question (where required). Advantages can be used in a
disadvantages question and vice versa but only where it is
used as a counter-argument. Common themes again include
considering interaction with major constitutional theories such
as Parliamentary Sovereignty, Judicial Creativity, Rule of Law,
Independence of the Judiciary and Separation of Powers.
Other common themes might include reflecting on the way
that different judicial approaches (activist v conservative) to
developing the law might impact on relative certainty, rate of
development and consistency.
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Law reform
4 hours
Influences on Parliament:
political, public opinion,
media, pressure groups and
lobbyists
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Learners should be able to describe a selection from, inter alia:
 Government Policy or ‘manifesto promises’ (political)
The Human Rights Act 1998 fulfilled
the 1997 election manifesto
promise to ‘bring rights home’
 Private Members’ Bills
Michael Colvin and David Steel who
introduced the Computer Misuse
Act 1991 and the Abortion Act 1967
respectively
 Pressure groups & lobbyists
Stonewall who campaigned for the
repeal of s28 of the Local
Government Act 1988 which was
included in the Local Government
Act 2003
 EU Law
Consumer Protection Act 1987
enacted to comply with the EU
Product Liability Directive
 Public Inquiries
The Cullen Report which was a
response to a public campaign (the
Snowdrop Campaign) after the
Dunblane massacre – it resulted in
the Firearms (Amendment) Act
1997
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 Special interest groups
The Trades Union Congress and
the Confederation of British Industry
who have contributed to changes in
employment law such as the Equal
Pay Act 1970
 Emergency situations
The response to the potential threat
posed by the attack on the Twin
Towers in 2001 which led to the
Anti-Terrorism, Crime and Security
Act 2001
 The Law Commission
Land Registration Act 2002
Digital Economy Act 2016
Suggested
resources
 Names of influences with some supported by examples of
Acts they have brought in or amended are all that’s required
here. There is no need, for example, to explain how these
influences work in anything other than outline detail
Law reform by the Law
Commission
The Law Commission is a formal, full time law reform body




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Who are they?
What do they do?
How do they do it?
An example of an Act based on a Law Commission Report
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The Law Commission Act (1965) &
The Law Commission Act (2009)
The Occupiers’ Liability Act 1984
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Advantages and
disadvantages of influences
on law making
 Questions may be based on both advantages and
disadvantages or one alone. As a useful guide, aim for four to
five properly developed arguments with supporting examples
(where appropriate) and a reasoned and justified response to
the question (where required). Advantages can be used in a
disadvantages question and vice versa but only where it is
used as a counter-argument. Common themes include
considering impact on major constitutional theories such as
Parliamentary Sovereignty, Judicial Creativity, Rule of Law
and Separation of Powers.
Suggested
resources
European Union law
5 hours
Please note: regardless of Brexit, this topic will remain part of the specification.
Institutions of the European
Union
Learners should be able to describe the membership, role and
legal functions of the main four institutions:
EUR-Lex
 The European Commission
 The European Parliament
 The Council of the European Union
 The Court of Justice of the European Union
 Contrary to the textbook, learners need only be aware of
preliminary rulings under Article 267 and the legislative
process in the EU as part of the functions of the four
institutions, not as topics in their own right.
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Sources of European Union
law
Learners should be able to describe the main sources of EU Law
with examples to illustrate:
Suggested
resources
Europa.eu
 Treaties
o
Founding (which set up the EU)
e.g. Treaty of Rome 1957
o
Accession (when new members join)
e.g. Treaty of Accession 1972
(when the UK, Denmark and Ireland
joined)
o
Amending
e.g. Treaty on European Union
1992 (Maastricht Treaty)
 Regulations
e.g. Unfair Terms in Consumer
Contracts Regulations 1994 &
Commission v UK Re: Tachographs
(1979)
 Directives
The Race Directive 2003
 There is no need for learners to cover the detailed operation
of direct effect, vertical direct effect, horizontal direct effect,
indirect effect, State Liability or the Kücükdeveci Principle
although awareness for AO3 is advised (see below)
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Impact of European Union
law on the law of England
and Wales
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This is an AO3 topic where learners should, as a guide, aim to
discuss four to five properly developed points relating to:
Learners may cite examples from
the following illustrative cases:
 The impact and effect of EU Law on UK Law – this will often
require a discussion of the extension of rights to individuals
through doctrines developed by both the CJEU and domestic
courts e.g. direct effect, vertical direct effect, horizontal direct
effect, indirect effect, State Liability or the Kücükdeveci
Principle which learners need only be aware of (as above)
Van Gen den Loos (1963)
 The concept of supremacy of EU Law over the domestic law
of member states with a focus on impact on Sovereignty of
Parliament
Von Colson v Land NordrheinWestfalen (1984)
Suggested
resources
Costa v ENEL (1964)
Internationale Handelsgesellschaft
(1970)
Bulmer v Bollinger (1973)
Marshall v Southampton & SW
Hants HA (1986)
Marleasing v La Commercial (1990)
Factortame (1990)
Francovich v Italy (1991)
R v S of State for Employment ex
parte EOC (1995)
Kücükdeveci (2010)
Farrell v Whitty and Others (2017)
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Planning guide – H418/02: Law of tort (48 hours)
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Rules and Theory
4 hours
An outline of the rules of the
law of tort
Learners should be able to:
 Understand that tortious liability involves some kind of
harm or interference with a protected interest which is
actionable in civil law in the civil courts to the burden
of ‘on a balance of probabilities’
 Recognise who is the claimant (the party who has
suffered harm) and who is the defendant (the person
who is alleged to have caused the harm)
 Appreciate whether proof of fault is required and, if
so, the nature of the fault
 Recognise the relevance of any possible defences
 Understand that the aim of a tortious action is
generally to gain compensation (usually in the form of
money known as damages) or gain an injunction to
stop or limit the cause of the action
 Understand that the parties to a civil action may
include any combination of both ‘natural’ and ‘legal’
persons
 The above content would be impliedly assessed
through all the assessment objectives rather than
being discretely assessed.
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An overview of the theory of
the law of tort
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Relevant cases
Learners should appreciate:
 The protected interests in Tort:
o Your ‘person’ (including physical,
psychological and reputational harm &
personal freedom)
o Your ‘land and property’ (including direct &
indirect interference with both land, property
and rights over land (such as ‘use and
enjoyment’)
o Your ‘economic loss’ in certain circumstances
Understanding Tort Law,
Carol Harlow, Thomson,
Sweet & Maxwell
 The aims of Tort Law:
o To provide compensation
o To achieve or uphold justice
o To achieve or uphold morality
o To act as an individual, general and corporate
deterrent
o To distribute loss
o To achieve policy aims (e.g. consumer and
environmental protection)
o To uphold civil liberties & human rights
o To fill the gaps or shortcomings left by
Criminal and Contract Law
The Wrongs of Tort,
Conaghan & Mansell,
Pluto Press
 The issues raised by the so-called ‘compensation
culture’
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An Introduction to Tort
Law, Tony Weir, Oxford
University Press
The Compensation Act 2006
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 The basic distinctions between Tort and Contract and
Tort and Crime
 The above content would be impliedly assessed
through all the assessment objectives (but principally
through AO3) rather than being discretely assessed.
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Liability in negligence
12 hours
Liability in negligence for injury Learners should be able to:
to people and damage to
 Recognise a potential action in negligence - where
property
harm is done to a protected interest (usually ‘the
person’ or ‘their property’) of the claimant through the
carelessness of an alleged wrongdoer (the defendant)
 Understand that the elements of an action in
negligence require proof that the defendant:
o Owed the claimant a duty of care
o Breached that duty of care, and
o Caused reasonably foreseeable harm
 Explain the relevance of any actionable defence,
appreciate the burden and standard of proof and the
role of compensation in the form of damages
 There is no need to cover economic loss (negligent
misstatement), psychiatric injury or liability for
defective products on this specification
 There is also no need to go into any specific detail on
the way negligence applies to special groups such as
the police, fire and other emergency services, lawyers
and judges, local authorities and other public bodies,
social services etc
 There is no need to cover res ipsa loquitur
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The duty of care: Donoghue v
Stevenson (1932) and the
neighbour principle, the
Caparo test and Robinson v
Chief Constable of West
Yorkshire (2018)
Relevant cases
Suggested resources
Learners should be able to:
 Explain the development of the concept of duty of
care
 Duty situations & case by case duties
Heaven v Pender (1883)
 Donoghue and the neighbour principle
Donoghue v Stevenson (1932)
 Expansion
Home Office v Dorset Yacht (1970)
Anns v Merton LBC (1978)
Junior Books v Veitchi (1983)
 Restriction
Caparo Industries plc v Dickman
(1990)
 The Caparo three-stage Test:
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 Foresight
Kent v Griffiths (2000)
 Proximity
Bourhill v Young (1943)
 Fair, just and reasonable
Mitchell v Glasgow CC (2009)
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 Robinson v Chief Constable of West Yorkshire Police
(2018) approach:
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Michael v Chief Constable of
South Wales Police (2015)
o
No single definitive test to assess the existence of
a duty of care
Steel v NRAM Ltd (2018)
Darnley v Croydon NHS Trust
(2018)
o
In the first instance look to apply an existing
precedent or established principle where
appropriate.
James-Bowen v Commissioner of
Police of the Metropolis (2018)
Poole Borough Council v GN and
another (2019)
o
If the case deals with novel issues or departing
from a previous decision, develop the law
incrementally and by analogy with existing
precedents. In doing so, can consider legally
significant features like whether it would be fair,
just & reasonable to extend duty of care.
Features like reasonable foresight remain
relevant.:
Sumner v Colborne & Others
(2018)
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Breach of duty: the objective
standard of care and the
reasonable man; risk factors
Relevant cases
Learners should be able to:
 Explain that a breach involves falling below the
standard of the reasonable man:
Suggested resources
Wells v Cooper (1958)
o
The reasonable man
Vaughan v Menlove (1837)
o
The reasonable learner
Nettleship v Weston (1971)
o
The reasonable child
Orchard v Lee (2009)
o
The reasonable professional
Wilsher v Essex (1988), Bolam v
Friern (1957), Bolitho v Hackney
HA (1997), Montgomery v
Lanarkshire Health Board (2015);
 Factors which may alter the standard of care
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o
Special characteristics
Paris v Stepney (1951)
o
Risk
Miller v Jackson (1977)
o
Adequate precautions
Latimer v AEC (1953)
o
Policy
Watt v Hertfordshire Council
(1954)
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Damage: factual causation;
legal causation
Relevant cases
Suggested resources
Learners should be able to:
 Explain ‘factual’ causation as set out in the so-called
‘but for’ test
Barnett v Chelsea & Kensington
Hospital (1969)
 Explain ‘legal’ causation
 Novus actus interveniens by
o
The claimant
Mc Kew v Holland (1969)
o
Nature
Carslogie Steamship Co v Royal
Norwegian Government (1952)
o
A third party
Knightley v Johns (1982)
 Explain remoteness of damage
o
Foreseeability of harm
The Wagon Mound (No 1) (1961)
o
Type of harm foreseen not extent
Bradford v Robinson Rentals
(1967)
o
Thin-skull or egg-shell skull rule
Smith v Leech Brain (1962)
 No need to consider multiple causes or loss of a
chance
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Relevant cases
Suggested resources
Occupiers liability
7 hours
Liability in respect of lawful
Learners should be able to:
visitors (Occupiers’ Liability Act  Explain and define:
1957)
o an occupier
o
premises
s.1(3)(a): Wheeler v Copas (1981)
o
who is a visitor (Express, implied and legal rights
of entry)
s.1; Lowery v Walker (1911)
o
Going beyond permission to become a trespasser
The Calgarth (1927)
 Duty owed under 1957 Act
s.2(2); Laverton v Kiapasha (2002)
 Duty to children
s.2(3)(a)
o
Awareness of allurements and responsibility of
parents
Glasgow Corporation v Taylor
(1922); Jolley v Sutton (2000) &
Phipps v Rochester (1955)
 Duty to skilled visitors & rescuers
o Guard against incidental risks
s.2(3)(b); Roles v Nathan (1963);
Ogwo v Taylor (1987)
 Warning signs
s.2(4)(a); Rae v Marrs (1990)
o
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Wheat v Lacon (1966)
Protect to extent they are capable of making
visitor safe
Roles v Nathan (1963)
 No duty to warn against obvious risks
s.2(5); Darby v National Trust
(2001)
 Position of independent contractors (IC)
s.2(4)(b)
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Relevant cases
 Occupier has defence if they can show the state of
the premises is due to the faulty work of an IC
Ferguson v Welsh (1987)
 Especially where work is too complex for occupier to
check but not where it is straightforward to check
Haseldine v Daw (1941);
Woodward v Mayor of Hastings
(1945)
Suggested resources
 Defences
Liability in respect of
trespassers (Occupiers’
Liability Act 1984)
o
Volenti non fit injuria
s.2(5)
o
Contributory negligence – reduction of damages
Law Reform (Contributory
Negligence) Act 1945
o
Exclusion clauses (extent of)
s.2(1); Unfair Contract Terms Act
1977
Learners should be able to:
 Explain who is a trespasser
Tomlinson v Congleton BC (2003)
 Describe the duty owed and the three conditions
under s.1(3)
s.1(3)(a)(b)(c); Tomlinson v
Congleton BC (2003); Swain v
Natui Ram Puri (1996)
 Standard of care owed – objective
s.1(4); Ratcliff v McConnell (1997)
 Factors can be taken into account
Rhind v Astbury Water Park (2004)
 Degree of danger and age of trespasser
Jolley v Sutton (2000)
 Occupier can expect trespasser not to pursue
Donoghue v Folkestone Properties
foolhardy activities (or where expertise/training should (2003)
make them aware)
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 No duty to ‘unexpected’ trespasser
s.1(5); Higgs v Foster (2004)
 Damage to property not covered
s.1(8)
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 Warnings
Suggested resources
s.1(5); Westwood v Post office
(1973)
 Defences
o
Volenti non fit injuria
s.1(6)
o
Contributory negligence – reduction in damages
Law Reform (Contributory
Negligence) Act 1945
Torts connected to land
10 hours
Private nuisance
Learners should be able to:
Explain the basic elements of private nuisance:
 An unwanted, continuous & indirect interference with
the claimant’s reasonable use and enjoyment of their
land
 Who may claim?
o
Claimant must have an interest in the land
affected
Hunter v Canary Wharf Ltd (1997)
 What might amount to a nuisance?
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o
Smells
Adams v Ursell (1913)
o
TV reception
Hunter v Canary Wharf (1997)
o
General noise / dust / heat / light / vibrations
Halsey v Esso Petroleum (1961)
o
Cliff subsidence (sudden)
Holbeck Hall Hotel and Another v
Scarborough BC (2000)
o
Sex shop lowering tone & house values
Laws v Florinplace Ltd (1981)
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o
Natural ‘accidents’
Leakey v National Trust (1980)
o
Blocked culverts
Sedleigh-Denfield v O’Callaghan
(1940)
o
Noisy neighbours
Coventry v Lawrence (2015);
Suggested resources
 What amounts to an unreasonable interference?
o
Duration
Crown River Cruises v Kimbolton
Fireworks (1996)
o
Sensitivity of plaintiff
Network Rail (Railtrack) v Morris
(2004)
o
Locality
Sturges v Bridgman (1879)
o
Utility of defendant’s conduct
Adams v Ursell (1913)
o
Effect of malice
Christie v Davey (1893);
Hollywood Silver Fox Farm v
Emmett (1936)
o
Seriousness of interference
Miller v Jackson (1977)
o
Effect on claimant’s human rights?
Marcic v Thames Water (2003);
Hatton v UK (2003)
 Who may be sued?
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o
Creator
Bybrook Barn Garden Centre Ltd v
Kent County Council (2001)
o
Occupiers
Leakey v National Trust (1980)
o
Landlords
Tetley v Chitty (1986)
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Relevant cases
Suggested resources
 Defences available – see below
 Remedies available:
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o
Injunctions
Kennaway v Thompson (1981)
o
Abatement
Lemon v Webb (1895)
o
Damages
Coventry v Lawrence (2015)
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Rylands v Fletcher
Relevant cases
Learners should be able to:
 Define the tort in Rylands v Fletcher
Suggested resources
Rylands v Fletcher (1868);
Transco plc v Stockport
Metropolitan BC (2004)
 Claimant needs to have interest in the land affected
Hunter v Canary Wharf (1868)
 Defendant is either the accumulator or occupier of the Read v Lyons (1947)
land the dangerous thing was accumulated on
 For a claim in Rylands v Fletcher, a claimant will have
to show that:
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o
A thing was brought and accumulated on the
defendant’s land
Giles v Walker (1890)
o
The thing will be likely to cause mischief if it
escapes
Hale v Jennings Bros (1938)
o
The thing itself need not be inherently
dangerous
Shiffman v Grand Priory (1936)
o
The thing escaping causes damage
Read v Lyons (1947)
o
There must be an escape but this can be
either from land over which the defendant has
control, or
British Celanese v Hunt (1969)
o
From circumstances over which D has control
Hale v Jennings (1938)
o
The harm must be foreseeable
Cambridge Water v Eastern
Counties Leather (1994)
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Suggested resources
 The use of land must be non-natural:
o
Use should be ‘extraordinary and unusual
considering time and place’
Transco v Stockport MBC (2004)
o
A potentially dangerous activity
Cambridge Water v Eastern
Counties Leather (1994)
o
Things stored in large quantities
Mason v Levy (1967)
 Claims are unlikely to be permitted for personal injury
Cambridge Water v Eastern
Counties Leather (1994)
 Defences available – see below
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Suggested resources
Vicarious liability
8.5 hours
Nature and purpose of
vicarious liability
Learners should understand:
 Nature & purpose
o
Vicarious liability (VL) is where one person
(usually an employer) is held responsible for the
torts of another person (usually his/her employee)
o
This allows a claimant to sue the employee, the
employer or both depending on who is best placed
to pay compensation (whether by financial
security or being better insured). This is important
because the tortfeasor will often be ‘a man of
straw’ and without VL an injured claimant would
be left with no compensation. It is usually justified
on the basis that the employer employs, trains and
supervises the employee as well as benefiting
from their labour.
 Parties
o
The tortfeasor = the person who commits the tort
(causes the harm)
o
The claimant = the victim who suffers the harm
and brings the action
o
The defendant = the person liable for the
tortfeasor’s tort (usually the employer)
 This is not discretely assessed but impliedly through
the content described below.
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Specification content
Liability for the torts of
employees based on the
traditional Salmond test
Relevant cases
Suggested resources
 Explain the main rules (Salmond test) for imposing
liability in relation to unintentional torts:
o
Tortfeasor commits an unintentional tort
o
Tortfeasor must be an employee
o
Tort must occur in the course of employment
 Identify the unintentional tort
Poland v Parr (1927)
 Explain the basic tests for establishing that the
tortfeasor is an employee:
o
Control test
Mersey Docks & Harbour Board v
Coggins & Griffiths (1947)
o
Integration test
Stevenson, Jordan & Harrison v
Macdonald & Evans (1952)
o
Economic reality (multiple) test
Ready Mixed Concrete v MPNI
(1968)
 Circumstances involving a ‘shared’ employee
Viasystems Ltd v Thermal Transfer
(2005)
 Identify whether the tort has occurred in or not in the
course of employment:
 Circumstances where the tort falls in the course of
employment:
Version 1
o
Expressly or impliedly authorised acts
Rose v Plenty (1976)
o
Acting in an unauthorised manner but doing what
employed for
Limpus v London General
Omnibus (1862)
o
Acting in a purely careless manner
Century Insurance v Northern
Ireland Transport Board (1942)
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 Circumstances that are not in the course of
employment:
o
On a ‘frolic of his own’
Hilton v Thomas Burton (1961)
o
Acting against orders
Beard v London General Omnibus
(1900)
o
Unauthorised act with no benefit to employer
Twine v Beans Express (1946)
Liability for the torts of
The courts have recently developed an alternative
employees based on the Lister approach to the conventional Salmond test. It started in
approach
the case of Lister v Hesley Hall. Under this approach the
court asks was the relationship between the employer
and employee ‘akin to employment’ and was the
commission of the alleged tort ‘closely connected’ to the
circumstances of the tortfeasor’s employment? A number
of cases have since refined these principles.
Lister v Helsley Hall (2002);
Various Claimants v Catholic Child
Welfare Society (2012); Cox v
Ministry of Justice (2016);
Mohamud v WM Morrisons
Supermarkets plc (2016); Armes v
Nottingham CC (2017); Barclays
Bank plc v Various Claimants
(2020)
 The principles state that two factors must be shown if
one person is to be held vicariously liable for the torts
of another:
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1. There must be a relationship (akin to
employment) between the two persons which
makes it proper for the law to make the one pay
for the fault of the other; and
Cox v Ministry of Justice (2016)
2. a close or sufficient connection between that
relationship and the tortfeasor’s wrongdoing.
Mohamud v WM Morrisons
Supermarkets plc (2016)
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Suggested resources
Akin to employment
Lord Phillips set out five criteria which can make it fair,
just and reasonable to find a relationship akin to
employment and impose vicarious liability:
(i)
(ii)
(iii)
(iv)
(v)
Version 1
the employer is more likely to have the means
to compensate the victim than the employee
and can be expected to have insured against
that liability;
the tort will have been committed as a result of
activity being taken by the employee on behalf
of the employer;
the employee’s activity is likely to be part of
the business activity of the employer;
the employer, by employing the employee to
carry on the activity will have created the risk
of the tort committed by the employee; and
the employee will, to a greater or lesser
degree, have been under the control of the
employer.
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Suggested resources
Close or sufficient connection
The first question is what functions or “field of activities”
have been entrusted by the employer to the employee, or,
in everyday language, what was the nature of his job?
Secondly, the court must decide whether there was
sufficient connection between the position in which he
was employed and his wrongful conduct to make it right
for the employer to be held liable under the principle of
social justice
 Independent contractors
o Employers are generally not liable for the torts of
independent contractors
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Barclays Bank plc v Various
Claimants (2020); Morrisons
Supermarket v Various Claimants
plc (2020)
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Relevant cases
Suggested resources
Defences
2 hours
Contributory negligence
Outline only
o What it is
o
o
Volenti non fit injuria
Defences specific to claims
connected to private nuisance
and Rylands v Fletcher
o
The Law Reform (Contributory
Negligence) Act 1945
How it operates
Possibility of 100% contributory negligence
Outline only
o What it is
o How it operates
Nettleship v Weston (1971)
Smith v Baker (1891)
Private nuisance
o What defences are available?
o
Prescription
Coventry v Lawrence (2015)
o
Act of a stranger
Sedleigh Denfield v O’Callaghan
(1940)
o
Statutory authority
Allen v Gulf Oil Refining Co Ltd
(1981)
 What defences are not available?
o Claimant came to nuisance
o Usefulness of defendant’s activity
o Defendant used all possible care/skill
Version 1
Sayers v Harlow (1958)
Jayes v IMI (Kynoch) Ltd (1985)
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Miller v Jackson (1977)
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Relevant cases
Rylands v Fletcher
o Act of God
Version 1
Suggested resources
Nichols v Marsland (1876)
o
Act of a stranger
Perry v Kendricks Transport (1956)
o
Volenti non fit injuria
Peters v Prince of Wales Theatre
(1943)
o
Wrongful act of third party
LMS v Styrene (2005)
o
Statutory authority
Charing Cross Electricity Co v
Hydraulic Power Co (1914)
o
Contributory Negligence: under the Law
Reform (Contributory Negligence) Act 1945
which reduces damages
Sayers v Harlow (1958)
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Specification content
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Relevant cases
Suggested resources
Remedies
0.5 hours




Compensatory damages
Mitigation of loss
Injunctions
Abatement
Version 1
 Learners should be able to explain the basis of
damages where relevant. What are:
o Pecuniary and non-pecuniary losses?
o Special and general damages?
o Lump sums and structured settlements?
 Learners should be able to:
o Explain the basic concept of mitigation where
relevant
 Learners should be able to:
o Explain the basic concept of an injunction
where relevant
 Learners should be able to:
o Explain the basic concept of the self-help
remedy of abatement where relevant
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Damages Act 1996
Marcroft v Scruttons (1954)
Coventry v Lawrence (2015)
Lemon v Webb (1895)
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Relevant cases
Suggested resources
Evaluation
2 hours

Critical evaluation of
liability in negligence,
occupiers’ liability, and
vicarious liability, including
ideas for reform
 This section only applies to the AO3 of the essay
questions 7 & 10. Learners should approach the
essay questions based on the 8:12 split in marks
available between 8 marks of AO1 and 12 marks of
AO3. Candidates should, as a useful guide, aim to
offer four to five properly developed arguments with
supporting examples (where appropriate) and a
reasoned and justified response to the question.
Advantages can be used in a disadvantages question
and vice versa but only where it is used as a counterargument.
 It is not necessary for students to learn bespoke and
specific AO3 for each area of tort law. If they focus on
the more abstract aims of tort law set out in the theory
of tort section (above), they can use their AO1
knowledge to reflect on the relationship between each
tort and the various aims and underpinning theories.
In this way, aims and theories provide the critical
‘toolkit’.
 The common frameworks for AO3 style questions
usually involve:
o Advantages and disadvantages
o The fairness or unfairness of a particular area
o The balancing of competing interests (e.g.
between employers and employees, occupier and
visitor etc)
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o
o
o
Version 1
Relevant cases
Suggested resources
The extent to which any tort achieves one or more
of the aims of tort law (or indeed their own aims)
How well an area keeps up with changes in
society
Comparing and contrasting two similar torts (e.g.
OLA 57 and OLA 84)
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Suggested resources
Books
Covering Both
OCR AS/A Level Law Book 1, 1st Edn, Martin & Price, Hodder
OCR A Level Law Book 2, 1st Edn, Martin, Wortley et al, Hodder
For Sources of Law
The English Legal System, 18th Edn, Slapper & Kelly, Routledge
Elliott & Quinn’s English Legal System, 20th Edn, Allbon & Dua, Pearson
English Legal System (Directions), 4th Edn, Wilson, Rutherford, Storey & Wortley, Oxford University Press
Walker & Walker’s English Legal System, Ward, Richard, Akhtar, Amanda, Oxford University Press
Tort Law
Tort Law: Text, Cases & Materials, 4th Edn, Steele, Oxford University Press
Law of Tort, 14th Edn, Cooke, Pearson
Tort Law Directions, 6th Edn, Bermingham & Brennan, Oxford University Press
Elliott & Quinn’s Tort Law, 12th Edn, Quinn, Pearson
Law Express: Tort Law, 6th Edn, Finch & Fafinski, Pearson
Unlocking Torts, 5th Edn, Dua & Turner, Routledge
Tort Law Text & Materials, 6th Edn, Lunney, Nolan & Oliphant
TV and Radio Programmes
Tort Movies
The Rainmaker 1997 (Matt Damon)
A Civil Action 1998 (John Travolta)
Hillsborough 1996 (ITV Film), Hillsborough Documentaries (2014 & 2016)
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Radio
The Law in Action https://www.bbc.co.uk/programmes/b006tgy1
Websites and other resources
OCR Law pages https://www.ocr.org.uk/qualifications/as-and-a-level/law-h015-h415-from-2017/
e-lawresources.co.uk http://e-lawresources.co.uk/Home.php
bits of law http://www.bitsoflaw.org
UK Parliament https://www.parliament.uk/
British and Irish Legal Information Institute http://www.bailii.org
UKSC https://www.supremecourt.uk/index.html
Old Bailey Online https://www.oldbaileyonline.org/
Winstanley College Law Pages http://alevellaw.doomby.com/
EU Law https://europa.eu/european-union/law_en
UK Gov Legislation http://www.legislation.gov.uk/
The Law Bank https://www.youtube.com/user/TheLawBank
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