'Cases as stories': a tale to be told - from boats to snails and from 'Boyle to Royal'

At KLS, new (stage one) students are exposed to the notion that, contrary to most people's idea of law being a 'book of rules',[1] case law - and therefore most of private law - in fact derives from stories that the law got involved in, which were then recorded in the law reports, subsequently becoming legal authority, or 'law'. From the outset, students are introduced to this concept using a series of cases during an introductory lecture given by the obligations team in induction week. The tone of the lecture is light-hearted but exudes a serious underpinning: the objective is to instil the idea that legal stories invariably have precursors and sequels, and how theorists such as Ronald Dworkin (1998, pp. 228-38) have likened the application of case law to a chain novel - each author (or judge) bringing something new to the work, whilst each must fit with what's gone before. By encouraging students to locate and map cases within a timeline, the ability to unpack and then chart the process of legal precedent within a given area of law is fostered and, as a result, students begin to appreciate the analogies between points of law and fact within preceding cases. Acknowledging that students are receptive to popular culture, the notion of teams of screen-writers writing episodes for a soap opera, such as Eastenders and Hollyoaks, is used to exemplify this point before introducing some actual case examples.

Using visual aids as lecture-theatre backdrops, students are led through a timeline of case law in a storybook fashion - we begin with the criminal case of R v Dudley and Stevens (1884) to create an atmosphere of drama and tension in the lecture theatre, telling tales of the horror that unfolded as three men stranded in a boat sacrificed the defenceless cabin boy in order to preserve their own lives, but with the purpose of illustrating how the defence of necessity can permeate the courts. The story is depicted, not as an isolated event arising from a unique set of circumstances, but as part of a larger story in which, before and after Dudley, the courts had to explore in other particular circumstances the boundaries of the defence of necessity as part of legal precedent. Similarly, the facts of McCutcheon v MacBrayne (1964) are explored in an attempt to demonstrate how a claimant need not be bound by his previous commercial dealings with the defendant, not because 'the book of rules' stated such a fact, but because of the way the courts had dealt with analogous situations involving signatures on contracts in the past - and how this story then formed part of a wider story involving tickets (Thornton v Shoe Lane Parking [1971]), the signing (or not) of documents (L'Estrange v Graucob [1934]) and personal injury sustained by ticket-holders (Thompson v London Midland & Scottish Railway [1930]), merging into the wider story involving tickets.

In order to introduce the concept of mental injury as an emerging legal harm in tort, McLoughlin v O'Brian [1982] is used and serves a dual purpose: not only does the heroine of the story emerge triumphant in her claim against those who caused her to suffer psychiatric injury by their negligence - and providing lecturers with the means by which to elucidate mental harm as a 'new' form of compensable damage - but the case provides the opportunity to illustrate the doctrine of precedent in full force. And of course, no 'tort story' would be complete without the seminal case of Donoghue v Stevenson [1932] and within the module KLS's programme pays homage to its importance. Complete with portraits of this story's key actors and photographs of the Well-Meadow Cafe - as it was then and how the site currently looks, continuing the concept of a timeline - Mae Donoghue and the alleged snail that changed the law of the land are brought to life, before expounding her story's implications for law today.

It is without apology that such care and attention to detail are afforded these pivotal cases of the past. But with so many important cases to choose from, we instil in our students that this is merely a tiny insight into of some of the cases that they will study over the course of their degree. As Caron (2003, p. 4) suggests, students should be encouraged to use their own senses and schema in order to build on knowledge, and:

[A]s a result, we should not sacrifice depth of coverage at the altar of scope of coverage; rather than rush through the signature cases in our subject in order to get to the latest hot topic or fashionable theory, we should savour the opportunity to unpack with our students what it is that makes these cases central to a deep understanding of the field.

In our experience, the 'hook' of telling tales to teach case method has proved exceedingly popular and effective with first-year students who, as a result, appear to be much more engaged with the reading of cases than demonstrated by previous student cohorts, and appear less reticent (or perhaps better equipped) to locate cases within a legal (or other) timeframe. Such a learning strategy is central in that it provides a framework upon which students can then contextualize the social, political and economic importance of the case under discussion and lends them to nurture their critical thinking skills, an essential tool for studying law. Furthermore, by introducing the parties of a legal action as 'characters', their story becomes personalized and humanized, making it much easier for students to grasp the idea of relationships, responsibilities and legal obligations between individuals in a duty situation. But the adoption of this form of pedagogy does not end there - having extolled the importance of the past, we then invite students to look to the future and, over the previous two years, we have introduced a familiar story to which any law student could not fail to have been exposed - the 'story' of the pervasiveness of reality TV, and particularly of Susan Boyle and Britain's Got Talent (BGT).

In direct contrast to examining historical case law, students are catapulted into the modern-day phenomenon of celebrity culture and reality TV, and the 2009 and 2010 cohorts were asked to consider whether the international singing sensation, Susan Boyle, suffered a legally recognized harm following her appearance on BGT, and if so, whom she could have sued. Seminar discussions centred upon the vulnerable mental state that Boyle demonstrated at her first audition in April 2009 and BGT's perceived lack of welfare and concern for her mental well-being. From this follows consideration of whether a duty of care should be owed to contestants on these types of show - particularly the vulnerable, infirm and minors - and by whom - and also the moral and legal role that parents and carers should play. Questions of legal obligations arising from assumed responsibility, standards of care, foreseeability of harm, the complexities of a claim for mental harm and privacy rights are probed before exploring the issue of a claimant's mental capacity and its relevance to the doctrine of informed consent, in an attempt to contextualize Boyle's situation with key elements of tort law, though this is juxtaposed with her individual success as a recording artist.

Having located the legal parameters of Boyle's story, students also explored the socio-cultural contexts within which it played out, such as societal preconceptions of physical attractiveness and personal presentation, and feminist critiques of women's treatment within celebrity culture. Students are encouraged to track the timeline of events that unfolded, from the reaction and treatment that was meted out by judges and audience alike to the actions of the media (see e.g. Revior and Simpson, 2009) in the aftermath of the programme being aired (which arguably contributed to her mental breakdown). Students were encouraged to develop their research skills by considering how different sources can present a story in contrasting ways, and to engage with the collated empirical evidence. By tracing the 'sequel' to Boyle, students began to unravel the legal consequences of the events that took place: despite the fact that Boyle never commenced legal proceedings, the effects of the Susan Boyle story become clear. In the same way that judges use precedent to determine the outcome of cases, students were awakened to the idea that Boyle indicates how past occurrences can shape future behaviour. Through their research, students unpacked the impact and influence that Boyle has had; for example, how production company policies have now been amended to reflect the potential implications of a lack of care. Post-Boyle, the health and well-being of contestants accepted for shows such as BGT and The X Factor are now afforded greater priority, including the provision of compulsory psychological testing, and greater monitoring and assistance are given to those who demonstrate signs of becoming overwhelmed by their overnight fame and/or notoriety (Thomas, 2009). In terms of privacy law, students revealed during class discussions how the media were reminded - and are now more mindful - of their responsibilities towards the rights of subjects under the Press Code of Practice (Brook, 2009).

By adopting this methodology, tort law students quickly acknowledge how the future is often determined by the past and how an appreciation of prior events can serve as a potential litigation avoidance strategy. Clearly, this form of case method, combined with independent student research and evidence gathering, provides an effective method by which to stimulate the acquisition of legal knowledge and understanding in a lively and culturally relevant manner. With the need to capitalize upon popular culture and up-to-date events to retain student engagement and the maintenance of a fresh approach to the learning of law, the 2011-2012 first-year cohort at KLS encountered a new story - that of the marriage of Prince William to Kate Middleton in April 2011. Moving from 'Boyle to Royal', students were invited to accept the notion that the ideology of cases as stories can have a usefulness in the study of law even where legal harm has not actualized. Moreover, this pedagogical approach can illustrate that stories do not have to have a legal outcome in order to demonstrate their potential legal consequences.

The Royal Wedding story proved to be an innovative and topical way to extrapolate certain elements of tort and contract law, helped largely (as with Boyle) by students' familiarity with the topic - even those from overseas. The use of YouTube clips introduced the concept of negligence and personal injury by bringing the students' attention to certain events that played out during the occasion, such as the Royal Horseguard who was thrown by a spooked horse, which then galloped unseated through the wedding procession, illustrating potential harm (both physical and mental) to the demounted rider, the crowd and the royal couple. In addition, students explored potentially tortious issues associated with crowd control and street parties and celebrations, as well as public body liability, public nuisance, the duties of local authorities, and anti-royal protests which could - and in some cases did (Press Association, 2011) - include elements of trespass to the person torts in assault, battery and false imprisonment (including 'kettling') and issues regarding the right to assembly and freedom of speech. Associated areas of law such as an action for breach of confidence in relation to the secrecy agreements surrounding the identity of the designers, makers and dress design of Kate Middleton's wedding dress were also discussed before students were introduced to the interplay between tort and contract in the context of Royal Wedding merchandise. Issues of contractual obligations and product liability were analysed whilst drawing upon existing case law to contextualize the potential for litigation arising from defective or sub-standard goods. Analogies were made between the ability to purchase 'royal condoms' (by drawing comparisons to the condom product liability case Richardson v LRC Products [2000]) and the re-introduction of Donoghue v Stevenson to students by discussing the sale of Papa John's 'William and Kate' pizza, with the legal implications of Donoghue demonstrating how the presence of an alleged snail back in 1932 allows consumers legal protection today.

As part of KLS's curriculum review, a 'skills matrix' was created in order to 'spiral' new-found skills from one module to other, reinforcing and building upon attained legal knowledge and tool acquisition. The spiralling of skills in this manner has been described as, 'a complex map of the teaching of skills and their repetition and progression across not only the core modules but also the optional modules and is gradually and continually being built, added to and developed' (Carr and Horsey, 2010, p. 5). In the spirit of the skills spiral, tort law students are encouraged at stage two to develop understanding of and reflect further upon the issues raised by the stories discussed in stage one and to use that legal knowledge as a springboard for a student-led debate concerning the socio-legal aspects of compensation culture, accident compensation, claims management companies and the role of insurance. One of the central features of the skills matrix is critical reading[2] and it is with this skill in mind that the Obligations modules in stage one and two further embed the skill of case law reading by way of case classes.

  • [1] The KLS obligations team is indebted to the pro-active teaching approach of now retiredsenior lecturer, Mr Alan Thomson, for the introduction of this innovative form of teachingand for the provision of a 'mock-up prop' currently used by teaching staff to visuallyemulate the 'rule book' conception of law.
  • [2] KLS includes six key skills in its skills matrix: effective learning, academic writing, researchand information handling, critical reading, problem solving and oral skills.
 
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