Cambridge A Level Law 9084 — 2020 Oct/Nov Paper 4 · Variant 3

This document has 4 pages. Blank pages are indicated. DC (KN) 205396 © UCLES 2020 [Turn over * 3 8 1 9 7 6 0 8 4 1 * Cambridge International AS & A Level LAW 9084/43 Paper 4 Law of Tort October/November 2020 1 hour 30 minutes You must answer on the enclosed answer booklet. You will need: Answer booklet (enclosed) INSTRUCTIONS ● Answer three questions in total: Answer at least one question from Section A. Answer at least one question from Section B. Answer one other question from either Section A or Section B. ● Follow the instructions on the front cover of the answer booklet. If you need additional answer paper, ask the invigilator for a continuation booklet. INFORMATION ● The total mark for this paper is 75. ● The number of marks for each question or part question is shown in brackets [ ].

2 9084/43/O/N/20 © UCLES 2020 Answer at least one question from Section A. Answer at least one question from Section B. Answer one other question from either Section A or Section B. Section A 1 Describe the factors considered by the court when deciding whether a duty of care should be imposed for a negligent misstatement. Assess the effectiveness of these factors. [25] 2 Different levels of protection should be afforded to certain categories of visitor in the context of the Occupiers’ Liability Act 1957. Describe the duty owed to visitors and assess the validity of the statement above. [25] 3 Explain the defence of contributory negligence and assess whether it achieves fairness between claimants and defendants. [25]

3 9084/43/O/N/20 © UCLES 2020 Section B 4 John has worked for AB Paints Ltd (ABP) for over 20 years. He has recently been diagnosed with a rare and serious illness. He believes that this may have been caused by exposure to a specific chemical used in the manufacturing process. His doctor has informed John that there was significant research published 10 years ago connecting this chemical to the type of illness with which he has been diagnosed. John is now unable to work and is facing very significant costs for his medical treatment. He believes that ABP has been aware of the risks highlighted by the research since its publication. John’s colleague, Bill, has also worked for ABP for 20 years. He has not been diagnosed with any physical condition but he has been unable to work since John’s diagnosis. He is depressed due to the worry that he too may develop this illness. Advise the parties as to their rights and liabilities in relation to negligence in this situation. [25] 5 Steve attends the annual Barchester firework display with a group of classmates from his college course. One of the group, Alan, brings some small fireworks of his own. During the display, Alan ignites one of these fireworks and throws it at the group to frighten them. As the firework is about to hit Steve, he deflects it but it then hits a bystander, Megan, and causes her serious injuries when it explodes. Megan’s husband, Ian, believes that Steve threw the firework. He shouts at Steve that he will kill him for what he has done. As Ian approaches him, Steve runs away but finds his path blocked by a number of security guards. Advise the parties as to their rights and liabilities in relation to trespass to the person in this situation. [25] 6 Tadgh has lived in a small village for many years. He works from home as an artist. The house next door was recently purchased by Dr Smith. She and her family have moved in and she operates a medical clinic from the ground floor. The clinic is very busy and Tadgh is finding it difficult to concentrate on his work due to the noise of patients and their vehicles arriving at and leaving the clinic. On a number of occasions, patients have parked on his driveway. He has asked Dr Smith to address these issues but nothing has changed. Last week, Dr Smith hosted a party for her daughter’s 18th birthday. There was a band playing loud music with a lightshow in the garden. Tadgh complained about the noise at 23:30 but the loud music and the party continued until 04:00. The day after the party, Tadgh purchased a drum kit and is now practising for several hours every day. Dr Smith has asked him to stop as it is interfering with the work of the clinic but Tadgh has ignored her request. Advise the parties as to their rights and remedies in relation to private nuisance in this situation. [25]

4 9084/43/O/N/20 © UCLES 2020 Permission to reproduce items where third-party owned material protected by copyright is included has been sought and cleared where possible. Every reasonable effort has been made by the publisher (UCLES) to trace copyright holders, but if any items requiring clearance have unwittingly been included, the publisher will be pleased to make amends at the earliest possible opportunity. To avoid the issue of disclosure of answer-related information to candidates, all copyright acknowledgements are reproduced online in the Cambridge Assessment International Education Copyright Acknowledgements Booklet. This is produced for each series of examinations and is freely available to download at www.cambridgeinternational.org after the live examination series. Cambridge Assessment International Education is part of the Cambridge Assessment Group. Cambridge Assessment is the brand name of the University of Cambridge Local Examinations Syndicate (UCLES), which itself is a department of the University of Cambridge. BLANK PAGE

This document consists of 9 printed pages. © UCLES 2020 [Turn over Cambridge International AS & A Level LAW 9084/43 Paper 4 October/November 2020 MARK SCHEME Maximum Mark: 75 Published This mark scheme is published as an aid to teachers and candidates, to indicate the requirements of the examination. It shows the basis on which Examiners were instructed to award marks. It does not indicate the details of the discussions that took place at an Examiners’ meeting before marking began, which would have considered the acceptability of alternative answers. Mark schemes should be read in conjunction with the question paper and the Principal Examiner Report for Teachers. Cambridge International will not enter into discussions about these mark schemes. Cambridge International is publishing the mark schemes for the October/November 2020 series for most Cambridge IGCSE™, Cambridge International A and AS Level and Cambridge Pre-U components, and some Cambridge O Level components.

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 2 of 9 Generic Marking Principles These general marking principles must be applied by all examiners when marking candidate answers. They should be applied alongside the specific content of the mark scheme or generic level descriptors for a question. Each question paper and mark scheme will also comply with these marking principles. GENERIC MARKING PRINCIPLE 1: Marks must be awarded in line with: • the specific content of the mark scheme or the generic level descriptors for the question • the specific skills defined in the mark scheme or in the generic level descriptors for the question • the standard of response required by a candidate as exemplified by the standardisation scripts. GENERIC MARKING PRINCIPLE 2: Marks awarded are always whole marks (not half marks, or other fractions). GENERIC MARKING PRINCIPLE 3: Marks must be awarded positively: • marks are awarded for correct/valid answers, as defined in the mark scheme. However, credit is given for valid answers which go beyond the scope of the syllabus and mark scheme, referring to your Team Leader as appropriate • marks are awarded when candidates clearly demonstrate what they know and can do • marks are not deducted for errors • marks are not deducted for omissions • answers should only be judged on the quality of spelling, punctuation and grammar when these features are specifically assessed by the question as indicated by the mark scheme. The meaning, however, should be unambiguous. GENERIC MARKING PRINCIPLE 4: Rules must be applied consistently, e.g. in situations where candidates have not followed instructions or in the application of generic level descriptors. GENERIC MARKING PRINCIPLE 5: Marks should be awarded using the full range of marks defined in the mark scheme for the question (however; the use of the full mark range may be limited according to the quality of the candidate responses seen). GENERIC MARKING PRINCIPLE 6: Marks awarded are based solely on the requirements as defined in the mark scheme. Marks should not be awarded with grade thresholds or grade descriptors in mind.

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 3 of 9 The mark bands and descriptors applicable to all questions on the paper are as follows: Band 1 [0 marks] The answer contains no relevant material. Band 2 [1–6 marks] The candidate introduces fragments of information or unexplained examples from which no coherent explanation or analysis can emerge. OR The candidate attempts to introduce an explanation and/or analysis, but it is so fundamentally undermined by error and confusion that it remains substantially incoherent. Band 3 [7–12 marks] The candidate begins to indicate some capacity for explanation and analysis by introducing some of the issues, but explanations are limited and superficial. OR The candidate adopts an approach in which there is concentration on explanation in terms of facts presented rather than through the development and explanation of legal principles and rules. OR The candidate attempts to introduce material across the range of potential content, but it is weak or confused so that no real explanation or conclusion emerges. Band 4 [13–19 marks] Where there is more than one issue, the candidate demonstrates a clear understanding of one of the main issues of the question, giving explanations and using illustrations so that a full and detailed picture is presented of this issue. OR The candidate presents a more limited explanation of all parts of the answer, but there is some lack of detail or superficiality in respect of either or both so that the answer is not fully rounded. Band 5 [20–25 marks] The candidate presents a detailed explanation and discussion of all areas of relevant law and, while there may be some minor inaccuracies and/or imbalance, a coherent explanation emerges.

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 4 of 9 Question Answer Marks 1 Describe the factors considered by the court when deciding whether a duty of care should be imposed for a negligent misstatement. Assess the effectiveness of these factors. This question concerns the tort of negligence with particular reference to its application in the context of negligent misstatement. Potential content: • General negligence requirements • Duty of care, breach of duty, damage • Special requirements for negligent misstatement • Special relationship • Reliance • Pure economic loss. Relevant case law should be used to support the explanation of the law. Candidates should then evaluate these factors, examining any criticisms and assessing whether each factor operates effectively. Potential content: • Need for a special rule for statements • Pure economic loss • Establishing the special relationship • Issues relating to reliance • Social situations • Remedy in contract. Candidates should attempt to come to a reasoned conclusion to answer the question asked. Critical analysis is required to achieve the higher mark bands. 25

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 5 of 9 Question Answer Marks 2 Different levels of protection should be afforded to certain categories of visitor in the context of the Occupiers’ Liability Act 1957. Describe the duty owed to visitors and assess the validity of the statement above. This question requires candidates to examine the issue of occupiers’ liability and different duties owned under the OLA 1957. Potential content: • Key terms – occupier, premises, visitor • Duty owed under the OLA 1957 • Children • Persons exercising a calling or trade • Independent Contractors • Discharging the duty. Relevant case law should be used to support the explanation of the law. Candidates should then examine the question of whether it is appropriate to vary the duty for different categories of visitor. Potential content: • Different categories of visitor • Special provision for children • Reference to trespassers as being outside scope of 1957 Act • Modifying the duty. Candidates should try to come to a reasoned conclusion. Critical analysis is required to achieve the higher mark bands. 25

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 6 of 9 Question Answer Marks 3 Explain the defence of contributory negligence and assess whether it achieves fairness between claimants and defendants. This question concerns the defence of contributory negligence. Candidates are required to explain the defence and evaluate the elements required for it to be used successfully. An outline of the elements of negligence may be credited, a detailed account is not required. Potential content: • A partial defence – Law Reform (Contributory Negligence) Act 1945 • Apportionment of fault • Reduction of damages • Lack of care by claimant • Lack of care contributes to damage • Children • Overlap with other defences. Relevant case law should be used to support the explanation of the rules. Candidates should then evaluate aspects of the defence. Potential content: • Difficulty of assessing claimants contribution • Issues with causation • Fairness of apportionment of fault • Excessive reduction of damages. Critical analysis is required to achieve the higher mark bands. 25

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 7 of 9 Question Answer Marks 4 Advise the parties as to their rights and liabilities in relation to negligence in this situation. Potential content: • The elements of negligence – duty/breach/damage • Duty of care – employer and employee • Breach of duty – reasonable employer • Issues relating to causation • Issues relating to remotes of damages. Relevant case law should be used to support the explanation of the law. Candidates should apply the law to the facts of the scenario and discuss the following: • Is there a duty of care? • Has there been a breach of duty – reasonable employer? • Could there be a difficulty proving causation? • Nervous shock – primary or secondary victim? • Are the Alcock factors satisfied? Candidates must explain the law and, in order to achieve the higher bands, candidates must also apply the law in a logical fashion to the facts and reach a coherent conclusion. 25

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 8 of 9 Question Answer Marks 5 Advise the parties as to their rights and liabilities in relation to trespass to the person in this situation. Candidates should introduce the tort of trespass to the person and then explain each of the varieties of the tort. Potential content: • Definition of assault • Definition of battery • Definition of false imprisonment • Intention • Direct • Actionable per se • Defences. Relevant case law should be used to support the explanation of the law. Candidates should apply the law to the facts of the scenario. Potential content: • Is there evidence of an assault – was there sufficient apprehension of immediate harm? • When the firework is deflected – is this a battery? • Alternative action in negligence? • Is there evidence of false imprisonment – was there total restraint? • Are there any defences? Candidates must explain the law and, in order to achieve the higher bands, candidates must also apply the law in a logical fashion to the facts and reach a coherent conclusion. 25

9084/43 Cambridge International AS & A Level – Mark Scheme PUBLISHED October/November 2020 © UCLES 2020 Page 9 of 9 Question Answer Marks 6 Advise the parties as to their rights and remedies in relation to private nuisance in this situation. Candidates should introduce the tort of private nuisance and explain the essential elements. Potential content: • Meaning of nuisance • Unreasonable interference • Factors – locality, duration, malice, sensitivity • Who can sue/be sued • Defences • Public benefit • Remedies. Relevant case law should be used to support the explanation of the law. Candidates should apply the law to the facts and reach a logical conclusion. Potential content: • Does the conduct of the respective parties constitute unreasonable interference? • Locality • Coming to the nuisance? • Public benefit? • Duration of the interference? • Malice? • Possible defences/remedies? Candidates must explain the law and, in order to achieve the higher bands, candidates must also apply the law in a logical fashion to the facts and reach a coherent conclusion. 25