The law of Tort- LAW LLB
PART A 1500 words
‘What is tort law? One answer is that a tort is a civil wrong for which the law provides a remedy. Tort law is, therefore, the name given to our diverse collection of these wrongs. Beyond this, however, there is no general agreement as to what defines or distinguishes a tort and, by extension, tort law. What we do know is that it covers a wide range of activities and many different types of loss. Learner drivers driving into lamp posts, oil spills, people falling downstairs, toilet cisterns falling off walls, police negligence, Twitter spats, itchy underpants, celebrities trying to hide affairs, image based sexual abuse and defrosting lobsters, this is the stuff of tort law. And it is these, and other cases, which are covered in this book. Which leads us nicely to perhaps the best definition of what tort is: ‘Tort is what it is said to be in the textbooks, and the only thing holding it together is the binding’. (Tony Weir, An Introduction to Tort Law (OUP 2006 page ix).
Horsey and Rackely, Kinder’s Casebook 15th ed (Oxford 2019).
‘The law of torts, or civil wrongs, is extensive and its boundaries are distinct. An understanding of these processes by which a number of miscellaneous causes of action came to be classified as tort must depend partly on semantics’.
J. H. Baker, Introduction to Legal History 4th ed (Butterworths 2002).
‘It is certainly true that in comparison to say contract law (traditionally, tort laws other half in the law of obligations) which is set to be grounded, among other things, in the morality of promise keeping, tort law appears to lack any such common theme or ambition, and resembles little more than a miscellaneous collection of relatively self contained wrongs’.
Horsey and Rackley, Tort Law (6th ed, Oxford 2019).
Having regard to the above and by reference to prominent case law and the established and emerging torts, discuss the nature of the law of tort and the interests it seeks to protect.
PART B – 500 words
Lisa is a self-employed educational psychologist. She is engaged by the Huddsford Education Authority to assess the educational needs of school children who have been identified as potentially being in need of support and to put together a programme to assist their educational development.
May is 8 years old. She has been identified by her class teachers as a child who is in need of support. Lisa is instructed by Huddsford Education Authority to carry out an assessment of whether May has any special educational needs and if so, to prepare a plan for her educational support.
Lisa assesses May and finds that she has dyscalculia, a condition which impedes the ability of a person to be able to comprehend numbers and acquire arithmetical skills. However, Lisa determines that May only has a mild form of the condition. Lisa establishes this primarily by assessing May’s ability to do her ‘times tables’ and her understanding of money. Lisa decides that May simply needs a little extra help in the classroom and that no special services need to be put in place.
The [fictional] National Dyscalculia Association (the ‘NDA’) has produced an extensive and in-depth peer reviewed study into dyscalculia. One of the conclusions of the NDA is that some children who have dyscalculia are able to learn their times tables by memory without actually being able to understand what it is they are doing. The NDA also find that some children are able to comprehend money; principally because it is based around multiples of ones and tens, which are simple to understand.
However, the NDA research concluded that children who cope with standard times tables and simple money calculations often struggle with more complex arithmetic and that applying tests which consider only those types of assessment regularly result in misdiagnosis. They propose all local education authorities implement their findings and devise policies for the provision of support of children with dyscalculia. The NDA’s suggested policy is that each child diagnosed with dyscalculia should receive a minimum of one hour per week tuition from a specially trained teacher or an educational psychologist or similar for at least a whole school year. Only then will the extent of the dyscalculia be established.
Lisa considers that the report has a degree of merit, but that in her view not all children who have mild dyscalculia need the levels of support (and the stigma that comes with that) as suggested by the NDA. Indeed, the NDA research itself confirms that only a small number of children who have a form of mild dyscalculia need the support being suggested by them. Lisa believes that providing the school know of the learning difficulty, they can accommodate the extra support required without the use of specialists.
A report by the [fictional] Association of Teachers of Children with Special Needs expresses caution about the NDA report saying that the expense involved can be disproportionate to the benefits. Moreover, the ATCSN believe that giving children additional support in this way has the effect of unnecessarily labelling them as different and that many children have some form of mild learning disability, which is overcome over time given the support of their school.
However, May’s parents are dismayed at Lisa’s conclusions and insist that she is given specialist support one hour per week.
Assume that Lisa owed a duty of care to May. Discuss whether Lisa is in breach of that duty. Do not consider whether May has actually suffered any loss.
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