Unravelling the tortuous process of teaching tort
The College of Estate Management in Reading runs a splendid two-year distance-learning, postgraduate diploma in arbitration. During the first year, the unsuspecting construction professionals - who make up the bulk of the intake - are obliged to get to grips with the intricacies of the law of contract, tort and evidence. Most students take to contract law like a duck to water: it is, after all, the stuff of life to construction professionals and, one or two quirky rules apart, contract law does make sense.
On the other hand, most students find the law of evidence completely incomprehensible. Well no surprises there: the law of evidence is incomprehensible. Even after a lifetime spent advising on evidence, calling evidence, demolishing evidence and making submissions on the evidence, a ready understanding of the applicable rules can often prove elusive.
Mercifully, unlike jury trials, the outcome of civil cases tends not to hinge upon whether a particular piece of evidence is admissible or not. The increasing trend is for the tribunal to admit the evidence and then see what they make of it, or what 'weight' they will ultimately give to it, when all is said and done.
In between these two learning extremes, the diploma students find the law of tort a bit of a challenge. I recently attended a course tutors'meeting during which much time was devoted to the question of how best to teach the law of tort.
Those assembled were left with the clear impression that it is not possible to learn the common-law principles of tort in general, and of negligence in principle, by rote. The only way to develop an understanding of, for example, the common law duty of care - something unknown to the law before the celebrated decomposing snail was found in a bottle of ginger beer bought by someone other than the ultimate consumer - was to apply the legal principles to practical situations. As students need something out of the ordinary to keep their attention, the bizarre, but true, facts of Green v Bannister (judgment 16.12.03) spring to mind.
Ms Bannister lived in a cul-de-sac. One night she reversed her car from the parking spot outside her house.The street was lit by a single sodium street lamp. She reversed up the street carefully looking over her right, off side, shoulder for about 35 yards. As she manoeuvred past a shrubbery bed her nearside wheel ran over Mr Green, who was lying inert in the roadway in a drunken stupor. Mr Green sued Ms Bannister for negligence.
The CEM's diploma students would be asked to 'advise Ms Bannister'.
The issues are as follows:
lDid Ms Bannister exercise sufficient care when reversing down a constricted ill-lit street late at night?
lDid Mr Green cause or contribute to the accident by negligently lying in the road?
lHow should liability be apportioned between the two?
Ms Bannister argued that her driving should be judged by the standard of the ordinary, prudent motorist, and that there had been no reason for her to anticipate an inert pedestrian lying in her reversing path.
The trial judge found that Ms Bannister was not negligent in electing to reverse down the cul-de-sac but that, having decided to do so, she should have checked her nearside wing mirror and looked over her left shoulder, as well as her right.
Had she done so she would probably have spotted Mr Green, or something to alert her that all was not well, and stopped.Nevertheless Mr Green was partly to blame for the accident.
In fact the judge held him largely to blame and apportioned responsibility between the two, holding Mr Green 60 per cent liable and Ms Bannister 40 per cent. The Court of Appeal upheld this decision and emphasised that it was not applying a standard of perfection to Ms Bannister's driving to require her to pay particular attention to what might be in the car's path.
The case of Green v Bannister is a text book illustration of how the notions of negligence and contributory negligence operate in practice. It is also a lesson to us all.