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A LEVEL

LAWExaminers’ report

H415/02 Summer 2019 seriesVersion 1

H415For first teaching in 2017

www.ocr.org.uk/alevellaw

A Level Law - H415/02 - Summer 2019 Examiners’ report

2 © OCR 2019

Contents Introduction ............................................................................................................................................. 3

Paper 2 series overview ......................................................................................................................... 4

Section A overview ................................................................................................................................. 5

Question 1 ............................................................................................................................................ 5

Question 2 ............................................................................................................................................ 6

Question 3 ............................................................................................................................................ 6

Question 4 ............................................................................................................................................ 6

Section B ................................................................................................................................................. 7

Question 5 ............................................................................................................................................ 8

Question 6 ............................................................................................................................................ 9

Question 7 .......................................................................................................................................... 10

Question 8 .......................................................................................................................................... 11

Question 9 .......................................................................................................................................... 13

Question 10 ........................................................................................................................................ 14

A Level Law - H415/02 - Summer 2019 Examiners’ report

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Introduction Our examiners’ reports are produced to offer constructive feedback on candidates’ performance in the examinations. They provide useful guidance for future candidates. The reports will include a general commentary on candidates’ performance, identify technical aspects examined in the questions and highlight good performance and where performance could be improved. The reports will also explain aspects which caused difficulty and why the difficulties arose, whether through a lack of knowledge, poor examination technique, or any other identifiable and explainable reason.

Where overall performance on a question/question part was considered good, with no particular areas to highlight, these questions have not been included in the report. A full copy of the exam paper can be downloaded from OCR.

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Paper 2 series overview This paper was the second of three papers taken by OCR A Level Law candidates following two years of study. This particular paper assessed component 2, which has two key themes – law making and the law of torts.

The work was of an excellent standard with candidates routinely accessing the full range of marks. We saw some truly impressive work and teachers are to be congratulated on preparing the candidates to such a high standard.

The paper has three assessment foci and, in order to do well, candidates need to demonstrate knowledge and understanding of the relevant law (AO1), be able to apply the law to a given factual scenario in order to construct liability (AO2) and be able to analyse and evaluate the law (AO3).

Candidates who did well were clearly well prepared by their centres and demonstrated the breadth of knowledge and task-specific skills needed to access the highest marks. High scoring scripts were marked out by:

• Candidates who ‘explained’ the law rather than simply ‘stating’ it

• A balanced approach to the paper as a whole – Section A is worth 25/100 marks and this was reflected in the relative attention given to Questions 1 to 4 as compared to Questions 5 to 10 in Section B.

• A balanced approach to each question – in Section A this might be evidenced by not including disadvantages in questions about advantages but, more typically, it was evident in Section B where candidates excluded material on irrelevant aspects of the question – thus freeing up time to spend on areas that did count

• Thoughtful and selective use of appropriate authorities

• Strong evaluative and critical skills – the clearest discriminators on the paper are the 15 AO3 marks in Questions 3, 4, 7 & 10. Many candidates did well across the AO1 and AO2 demands but the highest overall scores were generally achieved by those who could also access the AO3 marks on the above questions

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Section A overview Section A assesses the ‘law making’ component of the specification. Although it is a mandatory section, candidates can choose either Question 1 or 2 (10 marks AO1) and either Question 3 or 4 (15 marks AO3).

Responses tended to fall into three broad categories: those who had prepared well but spent too long on it at the expense of Section B; those who had taken a tactical decision to focus on Section B; and those who had prepared well for this section and correctly balanced timing and the marks available.

Question 1

High marks could be achieved by explaining both terms and providing supporting authorities for each.

Overruling: Higher achieving candidates recognised this is a process involving two different cases and not necessarily two different courts – it is a legal principle being overruled. They were also able to illustrate with appropriate pairs of cases, which were almost always Practice Statement pairs as these are the most accessible examples.

Other candidates struggled with accurate definitions of overruling and often described reversing or gave vague definitions such as ‘overruling is when a judge overrules a case’. Case illustration was often absent or not applicable, including Sweet v Parsley (a reversing case hence there is no ‘other case’) and R v R, which was given on this occasion as it appears in some resources as an authority for overruling. Centres would be best advised to stick to Practice Statement pairs for the future.

Distinguishing: Responses here were much better but sometimes candidates knew it was about ‘a difference’ between two cases but did not make it clear that it is a difference between the ‘material facts’ and not, for example, the outcomes or the law. Appropriate pairs of illustrative cases were also much more common.

Misconception Some candidates seem to think the European Court of Human Rights can overrule UK courts and cited Pretty v UK as an example.

This is not the case.

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Question 2

Performances were generally good. Most candidates were able to define both versions accurately and appropriate illustrative cases were common. In order to achieve high marks a candidate would need to have defined both the narrow and wide versions of the rule as well as offering supporting authorities for each.

Adler v George was given as both a narrow and wide rule case as there seems to be some mixed views and teaching practice here. For the record, this case has always been regarded as a narrow rule case by OCR.

Some candidates used valuable time going through all the rules of statutory interpretation before dealing with the golden rule on its own or comparing and contrasting it with other rules. Cases from other rules were also frequently cited in error – especially the mischief rule case of Smith v Hughes.

Question 3

There were many good answers to this question, although relatively few high scoring responses.

Where this question was well answered, it included clear understanding of the main advantages and the ability to develop and extend analysis through a series of coherent paragraphs.

Where it was less well answered, common reasons why included: large amounts of descriptive AO1 on the doctrine of precedent; undeveloped points; descriptions of cases and case facts which were not used to contextualise a critical point; and many instances of discussing the ‘disadvantages’ not the ‘advantages’. Disadvantages were given where they were used to contextualise an advantage (commonly as a ‘however’ point) but not where they were offered as self-standing critical points.

Question 4

Like Question 3, there were many good answers with a strong question focus and good development. However also like Question 3, some candidates were not quite able to access the higher marks for largely the same reasons.

Some candidates attempted to take a single central argument – that the golden rule produces fairer results – and then illustrate this through multiple cases. For example, a candidate might take three literal rule cases and explain what would have happened had the golden rule been used instead. While this is good work, it is also repetition and would not be creditworthy. In a similar vein, some candidates attempted re-worded versions of ‘avoiding absurdity’ based on swapping ‘absurd’ for various synonyms.

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Section B Section B was, on the whole, very well answered. The standard was very high with scripts commonly scoring marks in Level 4. Centres seem to have done very well in preparing candidates for these questions with clear evidence of various ‘methods’ being employed.

It makes no difference which method is adopted as long as there is clear ‘explanation’ of the relevant law with some supporting authority and a logical application of that law to the facts given with clear reference to the latter.

General Advice:

25 mark questions: Many candidates are still answering these questions as though they were 50 mark questions. Scripts running to 20+ sides of A4, individual questions running to 8+ sides of A4, and individual questions with 20+ cases were commonplace. These are half-hour responses, less thinking and planning time.

Every question in this section involves a single issue: Bob can successfully sue Alice in Rylands, Elektrix can successfully sue Charlie in negligence, Davina can’t sue Newtown Council under the OLA 84 and Erika can successfully sue Newtown Jet Ski Club. The candidates can realistically only construct liability based around the facts they have been given.

There are just 10 AO1 marks and 15 AO2 marks to differentiate between all the candidates. The key skills to promote and practise here are being selective and thinking on your feet. Candidates must be led by the information given in the question rather than fitting the question to a prescribed Rylands/negligence/OLA/nuisance template. Specific information will be given but many of the candidates could have achieved the same amount of marks, or better, in half the amount of material.

Cases: Candidates offering an exceptional response with no supporting authority could access top marks, but this is unlikely. Some supporting authority will normally be required as set out in the specification and the specimen mark schemes. However, some candidates have memorised huge numbers of cases and tried to include them all. This does not guarantee good marks and could also prove to be a distraction for some candidates.

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Question 5

The responses here were very good. High marks required the candidates to look at the key aspects of Rylands with some supporting authority and apply them accurately to Bob and Alice. Most candidates gave an accurate definition and the higher achieving candidates were able to explain key issues with appropriate support.

Other candidates often gave a basic definition and then provided a mixture of anecdotal and legal reasoning. Many candidates explained the law and applied it equally well but did not provide a single authority. The best answers were considered and intelligent accounts, which made strong links between the facts given and the law.

Common issues:

Out of the two questions in Section B, Part 1, this one was less well supported by relevant case law. Few candidates mentioned Transco despite its 15-year-old vintage, its House of Lords’ authority and the comprehensive judgement. The House of Lords declined to follow the Australian example and get rid of Rylands (or at least merge it with negligence - Burnie Port Authority v General Jones Property Ltd). So, there have been subsequent cases such as LMS International v Styrene Packaging and Insulation and Stanard v Gore – also rarely referred to.

Candidates generally had a good grasp of the concepts – especially things like foresight of harm but the most common misunderstanding was ‘non-natural user’ or ‘extraordinary and unusual’ since Transco. Candidates frequently asserted that it was the ‘thing’ brought on and accumulated that needed to be ‘non-natural’ rather than the use of land.

Most candidates correctly identified that Bob could claim against Alice but, as an example of the general point made above, many candidates then went through all the possible defences Alice might use only to draw the (correct) conclusion that none of them were applicable. This was not the best use of valuable time and could have caused timing issues in other parts of the paper.

Some candidates doubted whether the escape of dye from worn out old vats was foreseeable and so reached an alternative conclusion, which was given marks where reasoned and supported appropriately.

Some candidates imported concepts from other areas such as OLA and negligence and even crime – missing the fundamental point that Rylands is (apart from reasonable foresight) a strict liability tort.

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Question 6

Centres have clearly been teaching negligence well. Full mark responses were common and very few candidates were unable to apply the law to the given facts.

High marks required the candidate to set out the relevant law on duty, breach and causation of damage and then apply it to Charlie. It was a straightforward negligence case with no particular issues around any of the three key elements. Consequently, this was by far the most confidently answered question on the paper.

However, there is a lesson to be learned from this question, as it was the most overt example of excessive material. For example, given the information provided (which was a fairly straightforward case), there was no real need to run through all the various factors that might alter the standard of care in breach, the potential for any defences, the potential for breaks in the chain of causation, multiple causes or res ipsa loquitur. All these points were routinely covered though.

The ‘novelty’ point. Very few candidates were aware of the significance of Robinson v Chief Constable of West Yorkshire Police (2018). In this instance, the case was ‘flagged’ as involving novel principles, in which case Caparo (particularly the fair, just and reasonable limb) would need to be applied anyway – which is what all the candidates did. However, in the future there would be no justification in applying the Caparo test to a straightforward doctor-patient or driver-pedestrian situation.

Of the very few weaknesses on this question, the most common was missing out factual causation and going straight to legal causation. In a case like this one, candidates could have described and applied the ‘but for’ test and done enough for full marks. A brief comment that the damage was not too remote might be useful but there is nothing in the given facts to suggest that candidates needed to go into legal causation in any depth.

A small number of candidates struggled with the concept of proximity within the Caparo test. They seemed to think that Charlie needed to be physically close to the actual Elektrix company itself.

The majority of candidates started their answer off with a review of Donoghue v Stevenson. In spite of its historic importance, it was not relevant to this question and it is not necessary in a problem question to provide historical or contextual background.

The reasonable ‘drone flyer’. It would have been sufficient to say that the reasonable drone flyer would not answer the phone and fly with one hand. Many candidates speculated that Charlie was a learner drone flyer since he is starting the business or that he was a professional drone flyer since he is doing it for a living. In either case, the outcome would be the same and such speculation can often take up valuable time in an exam.

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Question 7

There were some excellent responses to this, the single compulsory essay question. Lots of very good accounts of the two limbs of the Salmond test with supporting case law and some well-argued and thoughtful evaluation of this unusual area of tortious liability. In order to obtain full marks candidates needed to cover the law of vicarious liability in three key areas: tests of employment, the law relating to ‘in the course of employment’ and some understanding of the close connection test and liability for intentional torts. Candidates then needed to evaluate this area of law by reference to the themes in the question.

However, many candidates lost marks on this question for what appeared to be two key reasons: a lack of time and a lack of AO1, with the lack of AO1 being the greater issue.

Lack of AO1: A significant proportion of the cohort treated this question as a purely discursive essay question. It was not uncommon to find candidates making analytical points in an extended fashion but failing to provide any contextual knowledge. It is important to remember that 10 of the 25 marks given for Questions 7 & 10 are for AO1 so there must be a factual basis to what is being evaluated. Some candidates didn’t provide any and couldn’t score more than 15/25. Some candidates provided cases but no context and this would achieve little more. Candidates cannot state that a particular case was unfair if the reader has no idea what the context is that makes the case unfair. Candidates need to explain the relevant law as well as evaluating it.

Case law: An area that had less impact but did act as a limitation on scoring high marks was the lack of recent case law. Vicarious liability was chosen as the essay question in one of the specimen papers and in the first live examination because it is an area of tort law which has been subject to much recent change. Candidates were well aware of the so-called Salmond test: was the tort committed by an employee and was it committed in the course of employment? However, awareness of the ‘akin to employment’ and the ‘close connection’ tests was very limited. These tests are no longer exclusively limited to cases involving intentional torts and recent cases have even changed the position that employers cannot be liable for independent contractors (Barclays Bank v Various Claimants) at least where intentional torts are concerned.

Conclusions: in order to score high marks, candidates need to provide a reasoned and justified conclusion. Many of the conclusions were lengthy repetitions of everything that had already been said in the main body of the essay.

Misconception Some candidates provided their own recommendations for reform on every single point they made. We had responses advising how to reform each test of employment and every aspect of ‘in the course of employment.

Unless there is a specific agenda for reform there is no need for candidates to create one of their own.

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Question 8

This question produced a mixed range of responses. For high marks, candidates needed to run through the reasoning that rendered Davina as a trespasser and, therefore, which Act applied and then go through the duty on an occupier towards a trespasser before reviewing the effect of the warning sign and/or Davina’s assumption of an obvious risk (Tomlinson), contributory negligence or volenti.

However, it was also possible to come to a different (equally legitimate) view of whether the last limb of s1(3) applied and this, alongside the existing range of possible outcomes, made this an interesting question. On the one hand, it provided the flexibility of a range of routes to a correct answer and, on the other hand, it could be viewed as a challenging question.

The question tended to polarise the candidates. Of those that did less well, some mistakenly came to the view that this was entirely within the remit of the 1957 Act. Others went through both the 1957 and 1984 Acts without concluding that one should apply rather than the other. Another group started with the 1957 Act and worked out reasonably quickly that Davina was a trespasser and the 1984 Act should apply but couldn’t take things much further.

However, those that correctly identified the 1984 Act from the outset tended to do very well and fall into two categories: a) those who navigated their way through based purely on relevant case law, and b) those who knew s1(3)(a-c), 1(4) and 1(5) well and worked through them. The latter group had the greatest clarity and did particularly well. Indeed, those scripts that took this route were often done really well with a sophisticated and incisive understanding of the way the 1984 Act operates as well as the relevant case law. The most able candidates were able to deal with the different possibilities raised by the scenario (see exemplar below).

There was impressive knowledge of a range of relevant case law as well as precise citation of the relevant sections of the 1984 Act.

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Exemplar 1

This is an example of both a reasoned, justified and well-considered conclusion and the candidate’s capacity to countenance the possibility of different outcomes from the same scenario. Overall liability is not just stated but explained – her claim fails ‘due to’ the use of [warning] signs.

The candidate then goes on to consider whether the defendants might counter this by arguing not only one but two possible defences (volenti and/or contributory negligence). Recognition of the possibility of 100% contributory negligence is not only recognised but is even supported by an appropriate authority.

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Question 9

High marks required candidates to explain the law of private nuisance. In particular, the identity and requirements of the parties, the factors that contribute to unreasonable use of land and the relevant defences. The many different factors relating to private nuisance as well the extensive range of defences meant many responses spread themselves a bit too thinly though, and included more detail than they needed to.

The question received several responses where candidates referred to everything they knew about nuisance, whether it was relevant or not. A surprising and significant number of candidates also thought jet skis making a noise was perfectly reasonable and that Erica knew what she was letting herself in for. There is a common misunderstanding of the law on ‘coming to the nuisance’ and over-estimates of the value of social benefit – unless the assertions were purely driven by anecdotal common sense.

The reference to ‘15 years’ and ‘planning permission’ were references to two possible defences. Furthermore, the similarity to Kennaway v Thompson should have led candidates to speculate about the suitability of a prohibitive injunction. However, several candidates missed both defences and remedies here.

Again, more up-to-date case law could have been included in answers for this question. Few candidates seemed aware of Coventry v Lawrence which was very relevant to this question or the fact that sensitivity would be dealt with under the concept of foreseeability since Network Rail v Morris.

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Question 10

As per Q7 – same question

There were some excellent responses to this, the single compulsory essay question. Lots of very good accounts of the two limbs of the Salmond test with supporting case law and some well-argued and thoughtful evaluation of this unusual area of tortious liability. In order to obtain full marks candidates needed to cover the law of vicarious liability in three key areas: tests of employment, the law relating to ‘in the course of employment’ and some understanding of the close connection test and liability for intentional torts. Candidates then needed to evaluate this area of law by reference to the themes in the question.

However, many candidates lost marks on this question for what appeared to be two key reasons: a lack of time and a lack of AO1, with the lack of AO1 being the greater issue.

Lack of AO1: A significant proportion of the cohort treated this question as a purely discursive essay question. It was not uncommon to find candidates making analytical points in an extended fashion but failing to provide any contextual knowledge. It is important to remember that 10 of the 25 marks given for Questions 7 & 10 are for AO1 so there must be a factual basis to what is being evaluated. Some candidates didn’t provide any and couldn’t score more than 15/25. Some candidates provided cases but no context and this would achieve little more. Candidates cannot state that a particular case was unfair if the reader has no idea what the context is that makes the case unfair. Candidates need to explain the relevant law as well as evaluating it.

Case law: An area that had less impact but did act as a limitation on scoring high marks was the lack of recent case law. Vicarious liability was chosen as the essay question in one of the specimen papers and in the first live examination because it is an area of tort law which has been subject to much recent change. Candidates were well aware of the so-called Salmond test: was the tort committed by an employee and was it committed in the course of employment? However, awareness of the ‘akin to employment’ and the ‘close connection’ tests was very limited. These tests are no longer exclusively limited to cases involving intentional torts and recent cases have even changed the position that employers cannot be liable for independent contractors (Barclays Bank v Various Claimants) at least where intentional torts are concerned.

Conclusions: in order to score high marks, candidates need to provide a reasoned and justified conclusion. Many of the conclusions were lengthy repetitions of everything that had already been said in the main body of the essay.

Misconception Some candidates provided their own recommendations for reform on every single point they made. We had responses advising how to reform each test of employment and every aspect of ‘in the course of employment.

Unless there is a specific agenda for reform there is no need for candidates to create one of their own.

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