First Class Tort Law Exam with a problem question on negligence and the general principles of duty of care and an essay on the tort of defamation. The grades and feedback for each question is shown at the end.
The overriding issue is whether the defendants, Duhret Tennis Club, and the A&E department, owe a duty of
care to those who have suffered from physical or psychiatric illness because of their negligence. Each of the
claimants will be advised individually.
To succeed in a negligence claim, it must be established that the defendant owed the claimant a duty of care
which was breached causing the claimant loss and that there are no applicable defences.
Duhret Tennis Club: duty of care
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, The issue is whether the tennis court fence was negligently constructed by the Duhret Tennis Club at a height
of 2.75 metres. Whilst this is the standard fence height in the “absence of any particular hazard”, it must
therefore be determined whether t the Duhret Tennis Club owed a duty of care.
As Eleanor and Priscilla are members of the club, they will be treated as visitors under the Occupier’s Liability
Act 1957 as they subsequently have permission to be on the property. Under section 2, the Club owes its
visitors a common duty of care to take “such care as in all the circumstances of the case is reasonable to see
that the visitor will be reasonably safe in using the premises for the purposes for which he is invited”.
Establishing whether this circumstance is ‘reasonable’ is a harder issue. Following the almost analogical case
of Bolton v Stone [1951], where the claimant was hit on the head by a stray cricket ball outside her house
adjacent to the cricket pitch, the risk of tennis balls going over the fence could have been reasonably foreseen
by the reasonable man. However, the risk of the injuries may not have been foreseen to follow, meaning the
foreseeability requirement of the hazard would not be satisfied. However, this may be contradicted by the fact
that the Durhet Tennis Club is “nearby” to the Durhet distillery. Therefore, it is reasonable to suggest the
injuries were foreseeable and that the Club should have taken further precautions to minimise the subsequent
risk. Nevertheless, the fencing requirements outlined the need for further height in respect of “any particular
hazard”. As stray tennis balls have been established as foreseeable, the Duhret Tennis Club has clearly fallen
below the standard of care expected of them and so will be in breach of any duty of care owed.
Furthermore, the chain of causation is straightforward. Due to the fence being negligently constructed to the
incorrect height, a bad shot could cause a ball to go over the inadequate fence and into the path of the lorry
transferring ethyl acetate. Jim’s loss of control of the tanker and subsequent explosion is a foreseeable
consequence. It is reasonable to believe that ‘but for’ the Duhret Tennis Club’s negligence to construct a fence
of the required height for hazards, the claimants would not have suffered these injuries (Barnett v Chelsea and
Kensington Hospital [1969]).
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