Introduction

Having discussed the skills you will require when planning and writing answers to problem questions we will now look at some worked examples to illustrate the planning and writing process.

Problem 1

Our first problem provides a relatively simple illustration of the points raised so far, but in order to understand it we must first consider the case of Donoghue v Stevenson [1932] AC 562.

The facts were that May Donoghue went with a friend to the Wellmeadow cafe in Paisley, Scotland, where her friend bought her an ‘ice cream float’. This treat consisted of ice cream in a tumbler, into which ginger beer was poured. After Mrs Donoghue had consumed some of the drink, her friend topped up the tumbler with more ginger beer. This action revealed that the bottle, which was opaque, contained not only ginger beer but also the decomposed remains of a snail.

Since Mrs Donoghue had not bought the drink herself she could not sue in contract so she brought a claim in tort against the manufacturer. The basic elements of the tort of negligence were well known to the common law before Donoghue v Stevenson, and can be summarised thus:

the defendant must owe the claimant a duty of care;

this duty must have been breached;

the breach must be the cause of the claimant’s damage (or loss); A the damage must not be too remote.

(Since Donoghue v Stevenson did not involve the question of remoteness of damage, we will not be exploring that idea here.)

The problem Mrs Donoghue faced was that the case law did not establish a general rule defining the relationships between parties that gave rise to a duty of care, but simply identified certain factual situations as creating duty relationships. For example, the cases established that dock-owners owed a duty of care to some (but not all) people using the gangways between docked ships. The cases also established that people who put into circulation ‘articles dangerous in themselves’ (like loaded firearms) owed a duty of care to people who might come within the vicinity of the dangerous articles. The decision of the House of Lords in Donoghue v Stevenson (which, incidentally was in Mrs Donoghue’s favour) led to the development of the modern tort of negligence, based on the neighbour principle. According to this principle, which is contained in the speech of Lord Atkin, you owe a duty of care to your neighbour.

Influential though Lord Atkin’s neighbour principle has been in the subsequent development of the law, the actual ratio of Donoghue v Stevenson is somewhat narrower, and is neatly summed up in the headnote of the report.

The manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.

For present purposes, this necessarily brief consideration of Donoghue v Stevenson will suffice and the first problem question can now be considered. In other words, having gained some useful legal knowledge, we are now in a position to apply it. Consider the following facts.

Adam buys a bottle of soda water from Cobra’s cafe. Eve drinks some of the soda water. Later that day Adam discovers the decomposing remains of a slug in the bottle. Advise Eve of any claim(s) she may have in the tort of negligence.

A cursory reading of the problem might lead to an answer based simply on knowledge of Donoghue v Stevenson. Such an answer might read:

Donoghue v Stevenson [1932] AC 562 establishes that the manufacturer of a product owes a duty of care to the ultimate consumer. Where, through the carelessness of the manufacturer, a consumer is caused damage by a defect in a product (and the consumer had no opportunity to identify the defect) the manufacturer will be liable in the tort of negligence.

This is not a good answer. It makes no reference to the facts or the issues raised in the problem and simply repeats the material as originally presented.

Eve can sue Cobra’s Cafe in the tort of negligence. The facts of this case are very similar to those in Donoghue v Stevenson [1932] AC 562; the slug in the soda water is as much a defect in the product as the snail was in the ginger beer. In Donoghue the court held that even though the claimant did not buy the product the manufacturer owed her a duty of care; thus even though Eve did not buy the soda water, the manufacturer will not escape liability.

A student who produced an answer like this is demonstrating some understanding of the law. One way of showing that you understand something is to rewrite it in your own words; this answer shows a familiarity with the case law and the capacity to reword and explain this comprehension to others. The issue (negligence) has been identified, the relevant case has been selected and there is some attempt to apply the law to a different set of circumstances. However, several criticisms may be made. First, in terms of issue identification, the answer does not set out the elements of the tort or identify the contentious issues in the problem. Secondly, in terms of style, it is much better to state the principle of law first and then apply this to the facts. Thirdly, and most importantly, the answer reveals that the student has not read the question with sufficient care.

You will recall that we said that, at the planning stage, analysis of the question requires a careful and questioning reading. Consider the problem and ask: do any facts that could have a bearing on your answer appear to have been omitted? Are there are any uncertainties in the facts we are given in the problem? An essential part of the planning stage is to break the problem apart so that we can identify the relationships between the parties and distinguish between relevant and irrelevant facts.

Careful analysis of the problem reveals three key issues:

we are not told whether anyone has suffered any damage or sustained any losses;

we do not know whether the bottle is clear or opaque or how Adam discovered the slug; and

we do not know who the manufacturer is.

Since the facts of a problem question are to be taken as stated and cannot be investigated, it is a matter of judgment as to whether alternative analyses should be considered or whether to make a reasonable assumption on the facts. Consider this answer to the problem:

The issue here is whether Eve (E) has a claim in the tort of negligence against the manufacturer of the soda water. To establish a claim, E will need to show that the defendant owed her a duty of care; that this duty was breached; that the breach caused her damage; and that this damage is not too remote. The main points here are whether E is owed a duty of care and if, as a matter of fact and of law, she suffered any damage.

A manufacturer of a product owes a duty of care to the ultimate consumer of a product where through the manufacturer’s negligence the consumer, who had no opportunity to inspect the product, suffers loss or damage (Donoghue v Stevenson [1932] AC 562).

In Donoghue v Stevenson, the claimant could not see the decomposing snail in the opaque bottle; thus she was denied the opportunity to inspect the contents of the bottle before drinking the ginger beer. This was an important factor in the court’s reasoning which led to the imposition of liability on the manufacturer. Although we know that Adam discovered the slug in the bottle of soda water, we do not know how he did this. If the soda water (a clear liquid) was in a transparent bottle the manufacturer may escape liability, since one of the central facts of this case would present an essential difference from the situation in Donoghue v Stevenson.

We do not know from the facts whether E has suffered any damage. This is important because it is only if she has sustained losses as a result of drinking the soda water that her claim in negligence will succeed.

E is, therefore, advised that unless (1) it is established that she could not inspect the contents of the soda water bottle and (2) that she suffered damage, she should not pursue a claim in the tort of negligence.

In this answer, the legal issues are clearly identified in the first paragraph and the elements of the tort are summarised. The most pertinent issues are highlighted and in three short sentences the scene is set. This can only be achieved by careful analysis at the planning stage. In the second paragraph the law which we selected (and which, of course, is somewhat limited in this example) is stated in so far as it is relevant to the facts. Note that there is no reference to the facts of Donoghue v Stevenson: only the applicable principle of law is stated. In the third paragraph the emphasis is on application of the law and building up an argument. At the planning stage, this involves asking how the facts of this problem differ from (or are similar to) the selected law. Here, at the writing stage, the material facts are evaluated against the law stated. The response concludes with advice to Eve. This is brief and not contrived: it simply answers the question posed.

The importance of understanding what you should be doing when answering a problem question is that, whenever you answer such a question, you can ask yourself: have I demonstrated to the examiner that I know and understand the law and that I can employ the skills of analysis and evaluation in applying the relevant law to the problem? Unless you can truthfully answer yes to this question, you should try again.

Problem 2

In Problem 1 we looked at some typical answers to a question on the basic elements of the tort of negligence and Donoghue v Stevenson. In Problem 2 we will look at a more complex factual scenario and work step-by-step through the four-fold approach to planning and writing in order to construct an answer to the problem. First, we will add to our knowledge of the tort of negligence by looking in more detail at the breach of duty point, and in particular at the standard of care owed by the drivers of motor vehicles.

We have already seen that in an action for negligence the first thing a successful claimant must establish is that the defendant owed him or her a duty of care. In many situations there will be no problem. For example, it is now well established that manufacturers owe a duty of care to the ultimate consumer of their products and that doctors owe a duty of care to their patients. Coming closer to the problem which we are about to consider, it is also well established that road users owe a duty of care to other road users. As Kennedy J stated, in Dulieu v White [1901] 2 KB 669, 671–672, a driver on a road owes a duty to use ‘reasonable and proper care and skill so as not to injure either persons lawfully using the highway or property adjoining the highway, or persons … occupying that property’.

Once the existence of a duty of care is established, the question of whether the defendant is in breach of that duty must be addressed. This is decided by judging the defendant’s conduct against that of a hypothetical ‘reasonable person’. This is primarily an objective test, because essentially the court asks, ‘what would a reasonable person have done in these circumstances?’ rather than seeking to enter the mind of the defendant in an attempt to identify what he or she was actually thinking. (There are many areas of law where the court will, indeed, seek to enter into the mind of a particular person: this is called applying a subjective test.) If the answer is that, on the particular facts of the case, the defendant’s conduct fell below the standard of the ‘reasonable person’ then the defendant will be held to be in breach of the duty which he or she owed; and, if that breach of duty caused damage to the claimant, the defendant will usually be liable. With these points in mind, we will now look at two cases, in both of which the ‘reasonable person’ is the ‘reasonable driver’.

In Roberts v Ramsbottom [1980] 1 WLR 823, the defendant suffered a stroke shortly before leaving his house to drive to work. Although the stroke had no obvious physical consequences, it did impair the functioning of his brain. The result was that Mr Ramsbottom drove off, without being conscious of the fact that he was ill. His journey lasted less than twenty minutes. In that time, he crashed into the back of a stationary van, narrowly missed running over two men working in the road, knocked a cyclist off his bicycle, and collided head-on with a parked car. The question for the High Court was whether the defendant could escape liability for the damage he had caused on the basis that his actions were completely beyond his control, or if he should be judged by the objective standard of care of an ordinary reasonable driver. Neill J, relying on a number of criminal cases, found that the courts had been reluctant to absolve drivers of liability where the disabling event was not sudden, and concluded, therefore (at p. 832), that ‘nothing less than total loss of consciousness’ would enable the defendant to avoid liability. Since Mr Ramsbottom’s consciousness had only been impaired, rather than completely lost, he was held liable for the damage which he caused. Significantly, Mr Ramsbottom had got out of his car after crashing into the stationary van and had engaged in a brief discussion with the van’s occupants before continuing his journey. The judge considered this would allow the claimants to succeed on a second ground, namely that the defendant had continued to drive not only when he was unfit to do so, but when he should have been aware of his unfitness.

The later case of Mansfield v Weetabix [1998] 1 WLR 1263, concerns a lorry driver who, unknowingly, suffered from a condition known as malignant insulinoma. As a consequence of this condition the driver’s brain was starved of glucose, resulting in improper brain functions. The lorry’s 40 mile journey ended when the driver approached a bend too quickly and crashed into the claimant’s shop. The driver had been seen driving erratically at two earlier points in his journey, and had been stopped by the police after he collided with the rear of a trailer which he was following. The question for the Court of Appeal was whether the judge at first instance had correctly interpreted the law in applying Roberts v Ramsbottom to the case. Leggatt LJ, delivering the unanimous judgment of the court, said Roberts was wrongly decided on the first ground, preferring to say (at p. 1267) that, in civil cases, a driver could escape liability where ‘the disabling event [was] gradual, provided that the driver [was] unaware of it’. The court went on to hold (at p. 1268) that although the driver suffered from only ‘an impaired degree of consciousness’ as a result of his malignant insulinoma, the fact that he was unaware that he suffered from the condition meant that he was not to be held liable for the damage that he had caused. The standard of care in the case was that of ‘the reasonable competent driver [who is] unaware that he is or may be suffering from a condition that impairs his ability to drive’. (Ibid.)

Before reading the problem question that follows you might find it useful to check your knowledge of the law we have examined thus far. In particular, you will find it helpful to note the differences between Roberts v Rams-bottom and Mansfield v Weetabix.

Now consider the following question.

Amber was diagnosed some years ago as being diabetic. She received a great deal of advice at that time, which placed particular emphasis on the importance of taking her medication conscientiously and eating regular meals, and how to identify the symptoms of hypoglycaemia (low blood sugar level), such as dizziness and blurred vision. One morning she oversleeps and in the rush to leave her house and get to work she gets into her car and drives off without eating any breakfast. On the way to work, Amber suffers from increasingly severe bouts of blurred vision and fails to stop at a red traffic signal. Amber narrowly avoids knocking Jade off her bicycle, but collides with Emerald’s car.

Meanwhile, Beryl, having crashed her car into a lamppost, is stationary some 200 metres ahead of the traffic signal. Jade stops when she sees the accident and finds Beryl collapsed and unconscious in her seat. While Jade is calling the emergency services, Beryl regains consciousness and attempts to drive off, running over Jade’s bicycle before bringing the car to a halt. Medical tests reveal that Beryl has suffered an epileptic seizure. Beryl has never had an epileptic seizure before and had no reason to believe she was susceptible to epilepsy.

Advise Amber and Beryl as to their liabilities in the tort of negligence.

To answer this question we first need to plan. Identifying the issues means re-reading the question, noting as we do so the material facts and the legal issues raised by those facts. Remember to read questioningly. For example, you might ask ‘Is it significant that Amber did not eat breakfast?’ The answer is ‘Yes’. It is significant that Amber did not eat anything, because diabetics who skip meals increase their chances of hypoglycaemia. If you cannot answer all the questions you raise during re-reading the question, do what research you can in the circumstances. If you are in an examination, your general knowledge, your dictionary (if you are allowed to use one) and your wits may be your only resources. If you are answering the problem question as a piece of coursework, a quick search on the Internet will often provide the answer.

Returning to the question, and dealing first with Amber, we note:

she knows that she suffers from diabetes and knows (or should know) that skipping meals might lead to hypoglycaemia;

she knows (or should know) that blurred vision is a symptom of hypoglycaemia;

she owes a duty of care to other road users;

she might be in breach of that duty by failing to stop at the red traffic signal (with the key issue here being whether she should be judged by the objective standard of care of the reasonable driver and, if so, whether she fell below that standard of care);

she caused damage to Emerald’s car; and

she might raise the defence that she had an impaired degree of consciousness.

Turning to Beryl, we note:

she had a sudden epileptic seizure while driving her car and as a result of this has crashed into a lamppost;

she had no knowledge of her condition;

she owes a duty of care to other road users;

she may be in breach of that duty by (i) crashing into a lamppost and (ii) driving over Jade’s bicycle (with the main issue here being whether she fell below the standard of care of a reasonable driver suffering a sudden disability);

she caused damage to the lamppost;

she caused damage to Jade’s bicycle;

in respect of the damage to the lamppost (presumably owned by the Highway Authority), she could raise the defence that she suffered a sudden and total loss of consciousness and was not aware of the condition that caused her disability; and

in respect of the damage to Jade’s bicycle, she could raise the de-fence that through impaired consciousness she did not know she was unfit to drive.

Now that we have identified both the material facts and the legal issues arising from those facts, we need to select the relevant law. In our example this is straightforward, since we have only looked at relevant cases. In the problem questions you will answer during your studies there are three reasons why this process will not be so simple. First, you will have to select the relevant law from a much larger body of law drawn from both cases and statutes. Secondly, having selected the applicable cases and statutes, you will need to examine these materials in detail, and perhaps carry out further research to discover whether there are other cases or statutes which are relevant to the legal issues raised by the problem. (Clearly this point does not apply to examinations.) Thirdly, the level of the court that made the decision might be relevant to the arguments you intend to develop and therefore you should note this. For example, in the cases we have selected here, we note that Roberts is a first instance decision of the High Court and that Mansfield is a decision of the Court of Appeal.

The third step in the planning process to consider how to apply the law to the facts of the problem question. What we are doing here is seeing how the selected law fits (or does not fit) the facts. We have done this by constructing a simple table (below) that we can readily refer to when we come to the writing stage. In the left-hand column we note the law and in the right-hand column we consider how it applies to the facts of the problem.

In this question we have been asked to advise Amber and Beryl as to their liabilities in the tort of negligence. Our answer will conclude with advice drawing on our application of the law to the facts. Some points are uncontroversial and we effectively drew our conclusions on these points as we applied the law to the facts in the table. Other issues are less clear-cut and it is these points that we need to discuss in our answer if we are to gain high marks.

The planning stage is now complete and we are now ready to write our answer. You might be wondering how you will ever manage to plan in this way under examination conditions. The simple answer is to practise throughout your course by using this method to prepare for seminars and tutorials and when doing coursework. You will also find that using this structure when planning answers to old examination questions will be a great help to you when revising for your examinations, because this will ensure that you revise actively, engaging with the kind of material you will encounter in the examination itself. You will also find that, if you plan effectively, you will spend less time writing; and, more importantly, you will answer the question in a structured fashion which will ensure that you keep the focus on the relevant issues. Here is our answer to the problem:

The issue for Amber (A) in this scenario is whether she is liable to Emerald (E) for the damage she caused to E’s car. Ultimately this will turn on whether A can successfully raise a defence, based on her impaired consciousness, in order to avoid liability in any negligence claim E might bring. Beryl (B) is likely to be sued by Jade (J) for the damage B caused to her bicycle; and by the owner of the lamppost, presumed to be the Highway Authority (HA). B will want to know whether she can resist these claims on the basis of her sudden and complete loss of consciousness and the fact that she was unaware of her unfitness to drive. To succeed in a claim in the tort of negligence, the claimants will need to show that the defendants owed them a duty of care; that this duty was breached; that the breach caused their damages; and that the damage was not too remote.

In Dulieu v White [1901] 2 KB 669 it was held that road users owe a duty of care to other road users and to persons and property close to the highway. On this authority it is clear that A owes a duty of care to E and B owes a duty of care to HA and J. Having established that defendants owe the claimants a duty of care, the next issue to address is whether the defendants breached the duty of care owed. This is a key issue for both A and B and the court would determine the matter by measuring the defendants against the requisite standard of care. Two possible routes are open to the court. First it could judge the defendants against the objective standard of the ordinary ‘reasonable driver’; secondly, it could use the more subjective test of the ‘reasonable driver’ who is unaware that she is suffering from a condition which impairs her ability to drive.

Looking first at A, she has suffered a gradual impairment of consciousness due to a hypoglycaemic attack which is a classic symptom of diabetes. A knew that she was a diabetic and skipped eating breakfast, which is the probable cause of her hypoglycaemic attack.

In Roberts v Ramsbottom [1980] 1 WLR 823 Neill J held that a defendant should be evaluated by the standard of care of the ordinary ‘reasonable driver’ unless the driver suffered a sudden and total loss of consciousness. Since A has suffered only a gradual and partial loss of consciousness, she would be judged by the standard of the ‘reasonable driver’ under Roberts. The requirement for a sudden and total loss of consciousness was, however, overruled by the Court of Appeal in Mansfield v Weetabix [1998] 1 WLR 1263. The court applied the ‘reasonable driver’ test subjectively holding that the lorry driver in the case was to be judged by the standard of the ‘reasonable driver’ who is unaware that he is suffering from a condition, which transpires gradually or suddenly, that impairs his ability to drive. The difficulty A faces is that, although the law no longer requires the sudden and total loss of consciousness, the court in Mansfield limited the subjective test to drivers who are unaware of their condition. A is not unaware that she suffers from diabetes and should know that not eating her breakfast might lead to a hypoglycaemic episode. Further, applying the second element of the decision in Roberts (which was not overruled by the Court of Appeal in Mansfield), A could also incur liability for driving when she was unfit to do so, or when she should have been aware of her unfitness to drive. Applying this test, A ought to have stopped driving as soon as she realised that her vision was blurred.

Turning to B and considering first her potential liability to HA, B crashed into HA’s property after a sudden epileptic seizure, causing complete loss of consciousness. This would satisfy the requirement for a sudden and total loss of consciousness under Roberts and the modified standard of care in Mansfield, making it highly probable that B would escape liability for the damage she caused to HA. This was B’s first epileptic seizure and she did not know she was susceptible to epileptic seizures. She would be judged as the ‘reasonable driver’ who is unaware of a condition that impaired her ability to drive.

B was not, however, unconscious when she damaged J’s bicycle, and the Court of Appeal did not criticise the second element of Roberts in Mansfield so it remains good law. If B were judged on this second part of Roberts, namely that she drove when unfit to do so or when she should have been aware that she was unfit to do so, the decision would turn on whether B was actually aware that she was unfit to drive. B is clearly unfit to drive, but given the seriousness of her condition it may well be that B was unaware of her unfitness to drive. The facts of the problem differ from those in Roberts, where the defendant never lost consciousness at any point and actually got out of his car and held a short conversation with the workmen whose van he crashed into before continuing his journey. Here, there is no evidence that B was ever roused to that level of consciousness and it may be that B was still very dazed and confused when she drove her car over J’s bicycle. While the claimant might argue that B’s ability to put the car into gear suggests some degree of consciousness, there is no indication that B’s level of awareness is any higher (and some suggestion that it may well be lower) than that of the defendant in Mansfield. In that case, the defendant drove his lorry some 40 miles before crashing into the claimant’s shop: here B has moved her car only a very short distance.

A is advised that she is likely to be held liable for the damage she caused to E’s car, since she suffered no sudden and total loss of consciousness and either was aware or should have been aware that she was unfit to drive. B is advised that the sudden and total loss of consciousness will absolve her of fault and liability in respect of the damage to HA. B’s liability to J is more problematic. However, it is submitted that she should not be held liable on the basis that she was not aware of her disabling condition and that her level of consciousness was seriously impaired to a degree at least equal to, and probably greater than, that of the defendant in Mansfield.