Examiners’ reports 2019

Examiners’ reports 2019

LA2001 Tort law – Zone B

Introduction
Some of the answers to the questions were good but many students did not obtain
full benefit from their knowledge because of their approach to the exam. Frequently,
answers had the potential to earn more marks if students had demonstrated their
knowledge and understanding more effectively. A number of common errors are set
out in this introduction and the main body of the report contains extracts from
student answers to illustrate these errors. Please note that spelling and grammatical
errors have been left in the extracts as they were in the examination scripts.
Students sometimes read the questions hurriedly at the start of the exam and failed
to spot an issue in a problem or misinterpret an essay question. This can be caused
by the stress of the exam situation, so it is important to prepare yourself in advance
for those first 15 minutes. It is very important to read the questions carefully and
plan your answers before you start writing. An unplanned approach leads to
‘jumping around’ and repetition which, apart from a lack of clarity in the answers, is
an inefficient use of time in the exam. It is of course very important to read carefully
the instructions at the end of the question, e.g. ‘Advise A, B and C’. Good time
management is essential. It is almost impossible to obtain as high a mark by
answering only three out of four questions, as would be achieved by answering four
questions to a slightly lower standard. Time spent on carefully planning your answer
is well spent. Not only will the plan give your discussion a clear structure, it will be a
useful point of reference as you work through your answer. This will prevent you
from omitting points you had intended to include and help you to manage your time
so that you do not spend too much time on any one question.
Problem questions assess your ability to identify and apply the relevant legal
principles to the given hypothetical factual scenario. A good mark in a problem
answer is achieved by demonstrating knowledge of the law in identifying the legal
issues behind the facts of the problem and then applying the relevant case law or
statute to the facts in the question. It is not an efficient use to time to give lengthy
introductions and/or conclusions; these should be concise. You should not write out
the facts of the scenario, which have already been presented in the question. It is
important not to jump to conclusions but rather think carefully about different
possibilities and then give relevant legal authority for your conclusions. Students
frequently presented all the law they considered to be raised by the facts in the
problem and then, without separating the issues clearly, failed to apply these legal
principles to the scenario. Alternatively, some candidates made the mistake of
addressing the scenario in very general terms, without providing the case and
statute authorities to support the conclusions they drew. This is not an effective
means of demonstrating your understanding of the law.
As in previous years, students showed a preference for answering the problem
questions rather than attempting the essays. A common mistake in essays is for the

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candidate to write everything they know about the topic, without addressing the
quote or question. The key to success on essays is to be aware at the outset that a
particular issue or debate is the focus. Therefore, the answer must present a clear
line of argument that addresses the issue or debate. It must be well organised and
well supported by relevant legal authority. Thoughtful analysis and criticism will help
to achieve a high mark. Coherent and well-structured arguments will assist you to
draw conclusions based on the central arguments explored in the essay that directly
answer the question set.

Comments on specific questions

PART A
Candidates must answer these COMPULSORY questions about the article
‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act
2015’ (2017).
Question 1
a) How do you understand the relationship between the Social Action,
Responsibility and Heroism Act 2015 (SARAH Act) and the
Compensation Act 2006, s.1?
b) The author argues that there are definitional problems with the
SARAH Act, particularly with s.4. What definitions are problematic
and why?
c) The interplay between the s.3 of the SARAH Act and the common law
is uncertain. Explain the reasons for this uncertainty, using case
law examples.
d) According to Mulheron: ‘we should legislate, not to send out signals
or messages, but to make good black-letter law, so that the courts
know what the law is and can apply it, and so that the legal
professions know what it is and can advise the public on it.’ The Act
falls a long way short of that ideal.
i. What are Mulheron’s reasons for this view?
ii. Do you agree?
General remarks
The article selected as the subject of this question focused on a piece of legislation
that has had little practical impact and has no reported cases. Candidates therefore
had an unusual challenge, to which they generally responded successfully. Many
answers reflected a good level of comprehension of the article and an ability to
contextualise the legislation in the wider legal environment.
Law cases, reports and other references the examiners would expect you to use
a) The similar political and social objectives of the two pieces of legislation; the
difference in the discretionary nature of the 2006 Act and that the 2015 Act is
mandatory; both reiterate the common law as seen in Watt v Hertfordshire, Bolton v
Stone, Latimer v AEC and Tomlinson v Congleton.
b) The terms within the 2015 Act that are insufficiently defined and examples of the
specific problems this could cause. International comparators of Good Samaritan
law should be cited.

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c) The problem with the ‘predominantly responsible approach’ in respect of the

common law e.g. Wilsher v Essex AHA; impact on the Bolam v Friern and Bolitho v
City and Hackney framework; the issue of omissions and the Bad Samaritan
framework, e.g. Smith v Littlewoods.
d)(i) The questionable use of legislation to further the political objectives.
d)(ii) Agreement or alternative arguments can be made for a good mark.
Common errors
Common errors were the failure to give equal time and effort to the four sections of
the question and in a number of cases not all four were attempted. Additionally, a
lack of detail in answers.
A good answer to this question would…
be well written and show a good comprehension of the relevant legislation and its
relation to the common law, particularly the arguments being put forward by the
author in the article.
Poor answers to this question…
were superficial and failed to engage with the common law overlaps and clashes
discussed in the article. Poor answers also failed to show that the candidate had
read the article in detail and with sufficient comprehension.
Student extract
Section 3 of the SARAH Act is not as benign as its counterparts in sections 2
and 4. Section 3 conflicts with the entire basis of the common law. Section
3’s wording as well as its possible application is problematic. Section 3 deals
with ‘responsibility’. The word ‘predominantly’ has raised question marks, as
it quantifies in a way responsibility which conflicts with the common law
principles in Bolam/Bolitho. Section 3 imposes a hefty duty on the so-called
‘Bad Samaritan’ which is to many the antithesis to good law!
Comments on extract
This answer to 1(c) was part of an overall answer to Q1 which was marked at a
mid-2.2 standard. It picks up some of the issues with s3 but doesn’t explain or
expand on the points. There is some inaccuracy. It does not specifically address the
problems raised by the phrase ‘predominantly responsible’ in contrast with existing
common law principle that each instance of alleged negligence must be evaluated
on its own merits. The Bolam/Bolitho point is not explained or developed. The ‘Bad
Samaritan’ comment is wrong, because Mulheron makes clear that s3 does not
change the common law nor did it intend to, although she acknowledges that this
could have been a possibility.
PART B

Question 2
‘There is no doubt that insurance profoundly influences the practical
operation of the law of tort’. (Lewis, R.)
Discuss.
General remarks
This question is deliberately wide to give candidates scope to answer at a range of
complexity. It was not attempted by many students and those who did tended to
approach it quite narrowly. Answers inevitably focus on the tort of negligence.

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Law cases, reports and other references the examiners would expect you to use
A selection of cases in which insurance was referred to include: Davie v New
Merton, Vowles v Evans, Smith v Eric Bush, Nettleship v Weston, Lamb v Camden,
Durham v BAI, Fairchild v Glenhaven.
Articles: Lewis, ‘Insurance and the tort system’; Stapleton, ‘Tort, insurance and
ideology’.
Common errors
Approaching the question too narrowly and/or not citing the relevant case law in
which insurance was explicitly or implicitly a factor were common errors.
A good answer to this question would…
be well organised, thoughtful and creative. It would introduce the various types of
insurance, noting situations in which it is compulsory. At the basic level, candidates
may focus on negligence and the fact that, in terms of the deterrence aim of tort
law, the insured wrongdoer may only indirectly suffer any financial loss. The earlier
position that insurance should not determine judicial decision-making (Davie) has
evolved to where it is openly considered in judgments. Candidates may discuss
whether this factor should determine outcomes. The better answers will engage
with policy about economic efficiency in loss-spreading and corrective justice. Some
may cite the asbestos litigation, e.g. Durham, Fairchild. Some candidates may
consider strict liability or no-fault schemes as well.
Poor answers to this question…
made the errors listed above. Poor answers did not demonstrate and clearly convey
an awareness of all the ways that the insurance market impacts on tort law; both
practically and in litigation.
Question 3
Freeway, a large supermarket, has two entrances, one at the north, the other
at the south end of the building. On the glass doors of the north entrance
there are two small notices at eye level. One reads ‘Freeway regrets it cannot
accept liability for any physical injury suffered on these premises’. The other
reads ‘Beware slippery floors’. Abby and her children Ben, aged two, and
Cathy, aged four, enter by the north entrance, which is congested at the time.
Wayne is employed by Freeway as a shelf stacker and arrives for work by the
south entrance.
Before Abby begins shopping she puts Ben into the seat of a new ‘Tots’
Trolley’ designed especially for children. Sometime later Abby realises that
Cathy has wandered off but she continues shopping. Meanwhile Cathy has
found her way into the storage area at the back of the store in a storage area
marked out by a single rope one metre high on which hangs a sign which
reads ‘No entrance’. In this storage area, Green & Sons are laying new floors.
Cathy begins to play with loose tiles which she pulls off the still wet floor. At
the sound of smashing tiles, Wayne looks across and sees Cathy playing
among broken tiles. He rushes towards the entrance of the storage area to
remove her, but slips on the wet floor. Wayne suffers extensive injuries and
his suit is badly torn. Abby, hearing the commotion and seeing that Cathy has
cut her hands, quickly pushes the trolley towards the scene. As she enters
the storage area, the trolley topples over and Ben is injured.
Advise the parties.
General remarks
This was a popular question and some candidates provided good answers.
Approaching the scenario requires sound organisation and also consideration of

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alternatives, for instance the various possible reasons for the accident involving the
trolley.
Law cases, reports and other references the examiners would expect you to use
The key statutes are the Occupiers’ Liability Act 1957 and the Occupiers’ Liability
Act 1984. Also relevant are the Unfair Contract Terms Act 1977 and the Consumer
Rights Act 2015. Wheat v Lacon and AMF v Magnet Bowling on establishing who is
the occupier, Phipps v Rochester Corporation regarding possible parental
responsibility for C, Woodward v Mayor of Hastings, Haseldine v Dawe, Ferguson v
Welsh, Gwilliam v West Hertfordshire NHS on the issue of possible liability of the
independent contractor G & Sons, under s.2(4)(b) of the OLA 1957.
Common errors
Common errors were not clearly to separate out the different potential claimants
then dealing with them in turn. Also, there was confusion between warnings,
exemptions and prohibition signage. More generally, there was a failure specifically
to apply the relevant statutory provisions.
A good answer to this question would…
identify the relevant statute and section of the statute and then use it accurately to
answer the factual issue in the scenario. To do this requires a depth of
understanding. It is important to give equal weight to all parts of the scenario, rather
than rushing the latter parts.
Poor answers to this question…
failed to apply the relevant statutes correctly to the facts. For example, on the issue
of the signs posted, candidates confused a warning with an attempt to exempt
liability, or they cited s.2(4)(a) of the OLA 1957 (warnings) but failed to consider the
issue of whether the sign in the scenario ‘was enough to enable the visitor to be
reasonably safe’. Another characteristic of poor answers was generality, for
example, just assuming that Freeway was the occupier, without citing the common
law criterion of control and the case of Wheat v Lacon as authority.
Student extract
Freeway may try to shift the burden to the inde contr carrying out the
renovation under s.2(4)(b) OLA 1957, provided that it could prove it’s
reasonable for them to entrust the contractor (Green & Sons) and that they
had taken reasonable steps to ensure that the contractor is competent and
that the work is properly done. This is possible (Ferguson v Welsh) only if
Freeway could satisfy the court to all these requirements. One point to note is
whether Freeway had checked insurance coverage of Green & Sons, which
could be an indication that Freeway had already taken reasonable steps to
discharge its liability (Gwilliam v West Hertfordshire NHS).
However, it is still questionable whether Freeway could just walk away like
that. Unlike the case of Haseldine v Dawe, the status of the renovation site
requires no technical knowledge to appreciate and the court may still incline
to find the occupier liable (Woodward v Mayor of Hastings).
Comments on extract
This answer was given a first, at the lower end of the range. It cites the correct
provision of the OLA 1957 and, more importantly, applies it appropriately to the
scenario, citing relevant supporting case law. The candidate shows a good level of
comprehension of occupiers’ liability in the way the likely outcome of applying the
precedents is evaluated.

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Question 4
Angela is a stockbroker and friend of long standing to Deshna. In January
2017 Deshna is made redundant from her job as a fashion designer and is
given £125,000 in compensation. She goes to see Angela in her office and
says that she would like Angela to act for her in investing her redundancy
money. Angela agrees to do so and they discuss possible investment
opportunities. Angela recommends investing the whole sum in daredevil.com,
an internet company which will provide holiday bookings for those keen to
indulge in ‘extreme sports’. Daredevil is being set up by Barney and Carly,
two recent graduates in Leisure and Sports Science. Angela is aware that
there is some concern among her colleagues about leisure industry startups
but she knows Barney and feels that his venture is sure to succeed.
In February Deshna invests all her redundancy money in daredevil.com at £15
per share. The following day, the stock market crashes and daredevil.com
shares become virtually worthless. On hearing the news, Deshna suffers a
heart attack. She is in hospital for two months and while visiting her on a
daily basis, her husband Norman becomes seriously depressed and is forced
to give up his employment.
Advise Angela.
General remarks
This straightforward problem on pure economic loss in negligence was popular with
candidates. Some answers received high marks but a number missed this
opportunity by omitting to include some basic and necessary elements of the law in
this area.
Law cases, reports and other references the examiners would expect you to use
Hedley Byrne v Heller on the duty based on the ‘special relationship’ duty, Mutual
Life Assurance v Evatt on context of the statement, Chaudhry v Prabakhar on the
social situation, Caparo v Dickman on duty, Philips v William Whitely and Bolam v
Friern on breach, JEB Fasteners v Marks Bloom on causation, Henderson v Merrett
on duty of care for services. On N’s damage, Alcock v CC South Yorkshire and Sion
v Hampstead HA on psychological damage and Wagon Mound (No 1) on
reasonable foreseeability.
Common errors
The common errors were the failure to clearly set out the ingredients of the Hedley
Byrne special relationship at the outset; another was the extensive consideration of
duty of care without then going on to deal with the elements of breach and
causation. Many candidates did not address the issue of D and N’s physical and
psychological damage.
A good answer to this question would…
briefly introduce the issue of duty of care problem with pure economic loss and then
go onto deal with each of the two claimants in order. The requirements of the
Hedley Bryne special relationship would be presented clearly and then applied to
A’s possible liability to D and N. A good answer will consider not only duty but also
breach and causation, e.g. should D have made her own inquiries before investing?
It is important to address not only the pure economic loss but also the physical and
psychological damage.
Poor answers to this question…
confused a number of tests for duty of care, e.g. apply the Hedley Byrne test
alongside the Caparo test (not necessary) and failed to organise the issues clearly.
They concentrated on duty of care but forgot to consider the possibility, for instance,

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that A’s statement was not the cause of D’s loss. Poor answers failed to address
the full range of losses of D and N.
Question 5
‘The “but for” test is a useful guide, but it does not solve all causation
problems.’
Discuss.
General remarks
The question is wide, to give candidates scope for a variety of approaches.
Causation is a particularly challenging aspect of negligence and this is especially
true of factual causation. Here, recent developments have been strongly influenced
by policy concerns, which candidates must understand in addressing this question.
Law cases, reports and other references the examiners would expect you to use
Barnett v Kensington & Chelsea on the but for test, Bonnington Castings v Wardlaw
and McGhee v NCB on material contribution to injury, Wilsher v Essex AHA and
Hotson v E Berkshire, Gregg v Scott on the strict application of the but for test,
Durham v BAI, Bailey v Ministry of Defence and Williams v Bermuda Hospitals
indicating expansion of judicial attitudes towards causation.
Common errors
Common errors were the confusion of factual and legal causation. Further, as in all
essay questions, the temptation to write all that has been learned about the topic
but failing accurately to use the knowledge to address the question set.
A good answer to this question would…
be directed to the quotation: what is the ‘but for’ test, how is it used and where does
it fail? Good answers must demonstrate an understanding of the concept of material
contribution to injury, the case of Fairchild v Glenhaven and then consider whether
further developments have been limited to the field of asbestos or extended to the
medical sphere as in Bailey v MoD and Williams v Bermuda Hospitals. A basic
mastery of the key cases is essential.
Poor answers to this question…
failed to explain accurately the ‘but for’ test, its purpose and then the instances in
which it is inadequate and to illustrate with relevant case law. Poor answers
confused factual with legal causation and/or did not present a clear line of argument
that addressed the question set. The reasons for citing a particular case must
always be specified.
Question 6
‘The law of vicarious liability is on the move.’ (Lord Phillips.) Discuss.
General remarks
This essay question on vicarious liability uses a quotation that engages candidates
to assess recent developments in the law of vicarious liability. To do so requires a
clear of understanding of the basic justifications for vicarious liability and then
mastery of relevant case law. A good essay will take a position on whether vicarious
liability is indeed ‘on the move’. The instruction ‘discuss’ is a relatively wide one but
the discussion must pertain to the quotation and reach a conclusion.
Law cases, reports and other references the examiners would expect you to use
There are many cases which illustrate the issues. A selection of those expected to
be seen would be: Market Investigations v Ministry of Social Security, Catholic Child
Welfare Society v Various Claimants, Cox v Ministry of Defence, Armes v
Nottingham CC on the employment relationship, Rose v Plenty, Century Insurance

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v NI Transport, Lister v Hesley Hall, Mohammed v Morrison on course of
employment.
Common errors
The most common error was failure to address the quotation, followed by lack of
adequate detail and case authority. Despite the emphasis on current issues, some
candidates did not include the most important recent case developments in the
field, in relation to ‘employee status’ and ‘course of employment’.
A good answer to this question would…
demonstrate a depth of knowledge and understanding of the policy reasons for
vicarious liability and also present opposing views. Cases will be accurately and
appropriately used to illustrate a point and reflect current developments in the field.
Academic articles may be cited.
Poor answers to this question…
dealt generically with random information on vicarious liability, lacking a clearly
structured argument. The use of cases were inaccurate, irrelevant, or not up-to-
date.
Question 7
Mercedes lived in a substantial London house, within an area for which Aqua
Water Utilities (‘Aqua’) provided sewers for the removal of sewage and
surface water. Following a week of heavy rainstorms and due to a blockage
created by vandals under the highway, the drains overflowed into the garden
belonging to Mercedes. The road was closed for two weeks inconveniencing
all the neighbours. Mercedes was forced to cancel an informal weekly
painting class in her home, run by a local artist, Bentley. About a dozen
people would normally attend the class, paying a nominal £5 to cover
refreshments and a contribution to Bentley, which usually totalled £150.
The following year, Mercedes invited Toyota to move into the ground floor of
the house, which Toyota occupied rent-free in return for helping the now
ageing Mercedes with shopping and household chores. Her next door
neighbour, Ford, has failed to maintain and repair the ancient water pipes in
his house. One day, while Mercedes was away on holiday, a leak developed
from Ford’s property into Mercedes’s house. The water ruined the carpets in
Toyota’s room and some of her possessions. She then had to move to a
nearby guesthouse because of the terrible smell left by the water.
When Mercedes returned, she was dismayed to find a number of cracks in the
walls of her house. A surveyor reported that he believed these were the result
of subsidence caused by the rising water table in the area as well as the
incursion of the roots from fast-growing trees planted by her neighbour,
Skoda. The trees, a new species called leylandii grossilio offesii, have a
previously unknown capacity to send out roots with a speed and
extensiveness that matches their destructive effect.
Advise Mercedes, Bentley and Toyota.
General remarks
This was a fairly popular question but the complexity of the scenario proved too
much of a challenge for many. Typically, it was necessary for candidates to
consider both private and public nuisance as well as the tort in Rylands v Fletcher.
Law cases, reports and other references the examiners would expect you to use
Hunter v Canary Wharf on status to sue in private nuisance, Sedleigh-Denfield v
O’Callaghan on adoption of a nuisance, McKinnon Industries v Walker on special
sensitivity, St Helens v Tipping, Sturgis v Bridgeman on locality and the defence of

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prescription, A-G v PYA Quarries and Tate and Lyle v GLC on public nuisance,
Rylands v Fletcher, Rickards v Lothian, Cambridge Water v Eastern Counties
Leather and Transco v Stockport on non-natural user.
Common errors were to fail to differentiate between the very different actions in
public and private nuisance, or not to consider the possible action in Rylands v
Fletcher on the damage done by the incursion of the roots. The succession of
different events was not always dealt with coherently. There was a weakness in the
use of relevant case law.
A good answer to this question would…
demonstrate an awareness of the distinction as well as the overlaps between
private nuisance, public nuisance and the tort in Rylands v Fletcher. The best
answers tackled Bentley’s financial loss as well as the more typical types of
‘nuisance’ damage. Good organisation was essential.
Poor answers to this question…
were generic and unfocused recitals of random aspects of law connected to
nuisance but not always accurate. Assertions about liability were not supported by
accurate case authority. Poor answers did not approach the events of the scenario
in a methodical and logical way.
Question 8
Alison is driving slowly while towing a trailer containing her horse. Caroline,
driving behind her, gets impatient and overtakes on a blind bend. In doing so,
she hits the horse trailer, causing it to turn over. Before Caroline can stop,
she encounters Mohammed, eight years old, who has run into the road
chasing a ball. Narrowly avoiding him, Caroline crashes into Buster, who is
coming in the other direction and is driving a stolen car. Buster, who was not
wearing a seatbelt, was badly injured. Alison is uninjured but both of her
horses die in the resulting crash. Following the accident, Alison finds herself
unable to drive, due to fear. Mohammed’s mother Eve, did not see the crash
but ran to the scene to administer first aid to Buster. She is now suffering
from depression. Mohammed is now extremely anxious and has terrible
nightmares.
Advise Alison, Buster, Eve and Mohammed.
General remarks
This question was attempted by many candidates and some did a creditable job on
it. It tests general understanding of the ingredients of the action in negligence and
how they operate in practice, with specific focus on defences to negligence and
psychiatric injury.
Law cases, reports and other references the examiners would expect you to use
Donoghue v Stevenson on duty of care and Nettleship v Weston on breach of duty.
Ashton v Turner and Delaney v Pickett on illegality, Road Traffic Act 1988 on
volenti, Law Reform (Contributory Negligence) Act 1945 and Froom v Butcher on
contributory negligence, Alcock v CC South Yorkshire and Page v Smith on
psychiatric injury.
Common errors
While not legally complex, this question requires good organisation and planning.
The most common error was confusion over who the actions would be by and
against. B is in an ambiguous position – he may be a claimant, with or without
contributory negligence, or possibly a defendant.

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A good answer to this question would…
demonstrate a sound understanding of the application of the basic ingredients of
negligence to a simple scenario, which tests the duty, breach and causation. It
would further demonstrate a mastery of the three main defences to negligence:
contributory negligence, volenti and illegality. The added element of possible
actions for psychiatric injury by M and E must be addressed.
Poor answers to this question…
were confused, with a failure to consider the essential ingredients of negligence
separately and in sequence. Poor answers were vague or inaccurate about the
requirements and applicability of the three key defences to negligence or did not
cite cases or statute appropriately. Many missed the final aspect of psychiatric
injury.
Question 9
Yemi, a staff reporter with ‘The Windsor Gazette’, has interviewed a number of
prostitutes and, on the basis of what he has been told by them, The Gazette
publishes Yemi’s article which contains the following paragraph:
It is clear that a number of our so-called ‘leaders’ are not necessarily
the paragons of virtue they would like us to believe they are. One well-
known old Etonian MP, who lives not a million miles from Windsor, is
a case in point  his brand of amorous athleticism would make most
ballet dancers envious. Too bad that, unlike them, he has to pay for
his partners!
Basil, the MP for Windsor, is an Old Etonian. He has never visited or used
prostitutes. Nevertheless, Sam, a local man, thinks he will profit from what he
takes to be this revelation about Basil, and pushes a blackmail letter through
Basil’s letterbox, stating that he knows all about Basil’s activities and
demanding £1,000,000 for his silence.
Unfortunately, the letter (which is in an unaddressed plain brown envelope) is
read by Basil’s wife, Lavinia, who opens it thinking it is a circular. The opened
letter is later found and read by Tilly, their cleaner, who phones her friend
David to share its contents. David is so excited that he posts the revelations
on the Scandalum Magnatum website, which is owned by Nadia. His posting
remains in place for two months.
Advise the parties.
General remarks
This defamation question was not frequently attempted and rarely achieved high
marks. It is a complex topic in which students sometimes grasp the most basic
elements but then struggle to apply even the basics of the law effectively to a
scenario.
Law cases, reports and other references the examiners would expect you to use
Defamation Acts 1996 and 2013 will be relevant, particularly on defences. For case
law: Sim v Stretch on defamatory meaning; Tolley v Fry and Lewis v Daily
Telegraph on innuendo; Lachaux v Times on serious harm, (s.1 2013 Act); Weyou v
Singh on evidence of malice to defeat qualified privilege; Morgan v Odhams on
reference to the claimant; Theaker v Richardson and Tamiz v Google on
publication.
Common errors
At least 50 per cent of the skill in applying the law of defamation consists of
defences. Often this aspect is not effectively addressed. Good organisation and
planning is essential because, without it, confusion rapidly ensues.

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A good answer to this question would…

methodically consider in turn each potential action, setting out its legal and factual
basis and its prospects of success, in terms of defences. Each assertion would be
supported by legal authority in case or statute law.
Poor answers to this question…
failed to cover all the different elements of the scenario but spent rather too much
time on a particular detail, while ignoring other aspects. A number of candidates did
not apply the Defamation Act 2013 in sufficient detail, particularly in relation to
defences. Some answers were not clear enough about what constitutes actionable
defamation and the distinctions between libel and slander.

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