Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Any versus long-term prescribing of high risk medications in older people using 2012 Beers Criteria: results from three cross-sectional samples of primary care records for 2003/4, 2007/8 and 2011/12

Background: High risk medications are commonly prescribed to older US patients. Currently, less is known about high risk medication prescribing in other Western Countries, including the UK. We measured trends and correlates of high risk medication prescribing in a subset of the older UK population (community/institutionalized) to inform harm minimization efforts. Methods: Three cross-sectional samples from primary care electronic clinical records (UK Clinical Practice Research Datalink, CPRD) in fiscal years 2003/04, 2007/08 and 2011/12 were taken. This yielded a sample of 13,900 people aged 65 years or over from 504 UK general practices. High risk medications were defined by 2012 Beers Criteria adapted for the UK. Using descriptive statistical methods and regression modelling, prevalence of ‘any’ (drugs prescribed at least once per year) and ‘long-term’ (drugs prescribed all quarters of year) high risk medication prescribing and correlates were determined. Results: While polypharmacy rates have risen sharply, high risk medication prevalence has remained stable across a decade. A third of older (65+) people are exposed to high risk medications, but only half of the total prevalence was long-term (any = 38.4 % [95 % CI: 36.3, 40.5]; long-term = 17.4 % [15.9, 19.9] in 2011/12). Long-term but not any high risk medication exposure was associated with older ages (85 years or over). Women and people with higher polypharmacy burden were at greater risk of exposure; lower socio-economic status was not associated. Ten drugs/drug classes accounted for most of high risk medication prescribing in 2011/12. Conclusions: High risk medication prescribing has not increased over time against a background of increasing polypharmacy in the UK. Half of patients receiving high risk medications do so for less than a year. Reducing or optimising the use of a limited number of drugs could dramatically reduce high risk medications in older people. Further research is needed to investigate why the oldest old and women are at greater risk. Interventions to reduce high risk medications may need to target shorter and long-term use separately.

STRIBOB: Authenticated Encryption from GOST R 34.11-2012 LPS Permutation.

Authenticated encryption algorithms protect both the confidentiality and integrity of messages in a single processing pass. We show how to utilize the L◦P ◦S transform of the Russian GOST R 34.11-2012 standard hash “Streebog” to build an efficient, lightweight algorithm for Authenticated Encryption with Associated Data (AEAD) via the Sponge construction. The proposed algorithm “StriBob” has attractive security properties, is faster than the Streebog hash alone, twice as fast as the GOST 28147-89 encryption algorithm, and requires only a modest amount of running-time memory. StriBob is a Round 1 candidate in the CAESAR competition.

Movement of Capital and Trade in Services:Distinguishing Myth from Reality Regarding the GATS and the Liberalization of the Capital Account

This article will analyze the interplay between capital movements and trade
in services as structured in World Trade Organization (WTO) law, and it will
assess the implications of the capital account liberalization for the freedom of
WTO Members to pursue their economic policies. Although the movement
of capital is largely confined to the domain of international financial or monetary
policy, it is regulated by WTO law due to its role in the process of
financial services liberalization, which generally requires liberalized capital
flows. From a legal perspective, the interplay between capital movements
and trade in services requires striking a delicate balance between the right
of market access and the parallel right of economic stability. Indeed, a liberalized
regime for capital movements could pose serious stability problems
during times of crisis. For this reason, it is necessary that Members are able
to derogate from their obligations and adopt emergency measures.
Regulating the movement of capital in the General Agreement on Trade in
Services (GATS) requires stretching the regulatory oversight of WTO law
over different aspects of international economic policy. Indeed, capital movements are a fundamental component of the balance of payments and have a
major role in shaping monetary, fiscal, and financial policies. This article will
analyze how the discipline provided by the GATS on capital movements will
affect not only trade in services, but also the Members’ policy space on
monetary and fiscal policy. The article will conclude that while the GATS offers enough policy space for the maintenance of financial stability, it does
not fully take into consideration the need of Members to control capital
movements in order to conduct monetary policies.