Formative MCQs Flashcards
A patient attends the Emergency Department of their local hospital with chest pain. The doctor briefly examines the patient and tells them to wait in the waiting room, where the patient suffers a heart attack and dies. Medical evidence proves that, if the doctor had treated the patient immediately, there was a 50% chance that the patient would have avoided the heart attack and survived.
Can the patient’s estate claim damages from the doctor for the patient’s death in the tort of negligence?
Select one alternative:
Yes, because the ‘but for’ test can be satisfied.
No, because a heart attack is a natural cause of death.
Yes, because the ‘material contribution’ test can be satisfied.
Yes, because the ‘material increase in risk’ test can be satisfied.
No, because the ‘but for’ test cannot be satisfied.
No, because the ‘but for’ test cannot be satisfied.
The correct answer is “No, because the ‘but for’ test cannot be satisfied”. But for the doctor’s breach (briefly examining the patient), the patient still would have died at that time and in that way on the balance of probabilities (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428). There was only a 50% chance that the patient would have lived if the doctor had treated the patient immediately i.e. there was a 50% chance that the patient would have died even if the doctor had not been negligent. In order to satisfy the ‘but for’ test, the patient’s estate would have to prove that there was a greater than 50% chance that the patient would not have died had it not been for the breach. The material contribution test does not apply here. This is not a case where medical science cannot establish the probability that ‘but for’ the breach the death would not have happened. Medical evidence confirms that there was a 50% chance of death even without the breach. Just because a heart attack can be a natural cause of death this does not mean that factual causation will fail. The question is whether the heart attack would have happened but for the breach on the balance of probabilities (Barnett). The material increase in risk test does not apply here as, currently, this is confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos (Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
A homeowner lives in a residential area of London. Five hundred metres down the road is an oil factory and the homeowner is getting increasingly annoyed about being kept awake every night between around 1am to 3am when the oil trucks are moving in and out of the factory. In addition, the factory emissions produce a continuous offensive smell and an acidic residue that damages the paint on the homeowner’s car. The oil factory has planning permission to operate and has existed for 15 years. The homeowner has only lived at the property affected for 5 years.
Which of the following statements is the best advice to give the homeowner in the tort of private nuisance?
Select one alternative:
A claim in private nuisance is likely to succeed because the factory is a non-natural use of land in a residential location.
A claim in private nuisance is unlikely to succeed because the homeowner moved to the nuisance. The factory had been operating for 10 years before the homeowner moved into their house.
A claim in private nuisance is likely to succeed because of the oil company’s unreasonable use of their land. The noise from the trucks occurs very late at night and the emissions are continuous. The locality of the area is also important.
A claim in private nuisance is likely to succeed because of the oil company’s unreasonable use of their land. The factory is operating in a residential area and should move elsewhere.
A claim in private nuisance is unlikely to succeed because the oil company has planning permission to operate in the area.
A claim in private nuisance is likely to succeed because of the oil company’s unreasonable use of their land. The noise from the trucks occurs very late at night and the emissions are continuous. The locality of the area is also important.
The correct answer is “A claim in private nuisance is likely to succeed because of the oil company’s unreasonable use of their land. The noise from the trucks occurs very late at night and the emissions are continuous. The locality of the area is also important”. When assessing whether the factory’s use of land is unreasonable, the courts will consider time and duration; when the nuisance takes place, how long it continues and how frequently it is repeated (Kennaway v Thompson [1981] QB 88). The noise from the trucks occurs every night between 1am and 3am which is frequent and very late at night, and the offensive smell is continuous. In addition, the courts will consider the locality of the area. The factory is operating a commercial business in a residential area, so it is likely the court will consider this activity unreasonable despite the planning permission. ”A claim in private nuisance is likely to succeed because of the oil company’s unreasonable use of their land. The factory is operating in a residential area and should move elsewhere” is incorrect because it does not refer to time and duration. In addition, the court may not require the factory to move given it has planning permission but instead might issue partial injunctions restricting emissions and noise. Planning permission does not authorise a nuisance (Wheeler v JJ Saunders [1996] Ch 18). The defendant factory will not be able to argue that the homeowner moved to the nuisance. This is not a valid argument in private nuisance. Non-natural use of land is terminology relevant to a claim under the rule in Rylands v Fletcher, not private nuisance
A company manufactures a state-of-the-art hairdryer which is distributed in England between January 2019 to January 2020, when concerns about the hairdryer overheating and causing fires brings production to a halt. In July 2019, a person buys the hairdryer from a shop (the ‘customer’). The hairdryer overheats and causes a small fire which results in £270 worth of damage to the customer’s carpet. The daughter of the customer was using the hairdryer at the time and suffers burns to her hands.
Which of the following statements best describes the customer’s and the daughter’s rights to redress under product liability law?
Select one alternative:
Neither the customer nor their daughter has a claim in product liability as they have no contractual relationship with the company that produced the hairdryer.
The customer has a claim under the Consumer Protection Act 1987. The customer’s daughter can claim under the Consumer Protection Act 1987 or common law.
Both the customer and their daughter have a claim under both the Consumer Protection Act 1987 and in common law.
The customer has a claim in common law only. The customer’s daughter can claim under the Consumer Protection Act 1987 or under common law.
Only the customer has a viable claim for the damage caused by the faulty device as they purchased the product and were the legal owner at the time of the incident.
The customer has a claim in common law only. The customer’s daughter can claim under the Consumer Protection Act 1987 or under common law.
The correct answer is “The customer has a claim in common law only. The customer’s daughter can claim under the Consumer Protection Act 1987 or under common law”. The customer has a claim in common law only as the only damage they have suffered is property damage to their carpet that is worth less than £275. Under s. 5(4) of the Consumer Protection Act 1987, no claim can be brought unless the property damage exceeds £275. The customer would therefore have to prove their claim in common law, that the company making the hairdryer fell below the standard of a reasonably competent manufacturer. The daughter can bring a claim under the Consumer Protection Act 1987 because anyone who suffers damage as a result of the defect can sue the manufacturer. They do not need to be the purchaser of the product to sue under the Act. The daughter has suffered personal injury caused by a defective product, so has the right to sue under the Act. She can also bring a claim in common law but would have to prove that the hairdryer manufacturer fell below the standard of care of a reasonable manufacturer. You do not have to have a contractual relationship with the manufacturer in order to sue them under the Consumer Protection Act 1987. Anyone who suffers damage as a result of the defect can sue. This is also why the option “Only the customer has a viable claim for the damage caused by the faulty device as they purchased the product and were the legal owner at the time of the incident” is incorrect.
A hotel guest explores their hotel. They want to look at the new swimming pool that is being built and enter at the main door of the swimming pool area despite reading a large sign on the door saying: “Do not enter. Staff only. This swimming pool is under construction and is very unsafe.” As the guest walks around the swimming pool, they slip on a large puddle of water, falling so hard that they break their leg and wrist. Their phone is smashed to pieces.
Which of the following statements is the most accurate advice for the guest in the tort of occupiers’ liability?
Select one alternative:
The guest is a visitor, and the hotel is unlikely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1957. The warning is likely to be sufficient to discharge any duty owed by the hotel to the guest.
The guest is a trespasser, and the hotel is unlikely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1984. The warning is likely to be sufficient to discharge any duty owed by the hotel to the guest.
The guest is a trespasser, and the hotel is likely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1984. The guest will be able to recover damages for their personal injuries and damaged phone.
The guest is a trespasser, and the hotel is likely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1984. The guest will be able to recover damages for their personal injuries, but not for their damaged phone.
The guest is a visitor, and the hotel is likely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1957. The guest will be able to recover damages for their personal injuries and damaged phone.
The guest is a visitor, and the hotel is unlikely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1957. The warning is likely to be sufficient to discharge any duty owed by the hotel to the guest.
The correct answer is “The guest is a trespasser, and the hotel is unlikely to be in breach of any duty it owes the guest under the Occupiers’ Liability Act 1984. The warning is likely to be sufficient to discharge any duty owed by the hotel to the guest”. A trespasser is defined as a person who goes on to land without invitation, and whose presence is either unknown or practically objected to. Despite being a guest at the hotel, the sign on the door to the swimming pool makes it very clear to the guest that the swimming pool is not to be looked at or used. Under s.1(5) of the Occupiers Liability Act 1984 any duty owed by an occupier to a trespasser may be discharged if the occupier takes all reasonable steps “to give warning of the danger concerned or to discourage persons from incurring the risk.” The sign gives warning of the danger concerned – it is under construction and is very unsafe. Note that, if the trespasser’s claim were successful under the Occupiers’ Liability Act 1984, they would only be able to recover damages for their personal injuries, not their damaged phone.
The director of a company, who was in charge of salaries, organised the company’s summer party on the company’s roof top terrace. The company paid for all food and drink at the party. Late at night at the party, some employees started questioning the director about the low salary increase they had received. The director got very angry and punched one of the employees. The employee fell and hit their head, causing traumatic brain damage. The director’s actions amount to the tort of battery.
Which of the following statements best explains whether the company might be vicariously liable for the brain damage caused to the injured employee?
Select one alternative:
The company could be vicariously liable. The director is an employee of the company who committed a tort (battery) during the course of their employment. There was a sufficient connection between their position as a director and their tort.
The company could be vicariously liable. The director is an employee of the company who committed a tort (battery) at the company’s summer party. The company is responsible for all the actions of its employees at work events.
The company could be vicariously liable. The director is an employee of the company who committed a tort (battery) at the company’s summer party. The company is responsible for all the actions of its employees that occur on its premises.
The company will not be vicariously liable. The director is an employee of the company, but they did not commit a tort (battery) during the course of employment. The tort occurred outside of working hours.
The company will not be vicariously liable. The director is an employee of the company, but they committed an intentional tort during the course of their employment, not negligence.
The company could be vicariously liable. The director is an employee of the company who committed a tort (battery) during the course of their employment. There was a sufficient connection between their position as a director and their tort.
The correct answer is “The company could be vicariously liable. The director is an employee of the company who committed a tort (battery) during the course of their employment. There was a sufficient connection between their position as a director and their tort”. This option covers the three-stage test for vicarious liability: (1) a tort (battery) has been committed (2) by an employee of the company and (3) during the course of employment. In relation to the third requirement, the close connection test is applied (Lister v Hesley all Ltd [2002] 1 AC 215). This is a two-stage test: (A) What functions or ‘fields of activities’ have been entrusted by the employer to the employee (what was the nature of their job)? (B) Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable? Here the director’s job was to take managerial decisions, particularly in relation to salaries and enforce their decisions. There was therefore a sufficient connection between the director’s position and their battery – they were exercising their authority over other employees who were challenging the director’s decisions regarding salary. The tort occurred at a work event on work premises. An employer is not responsible for all the actions of their employees at work events, only those that amount to a tort and that are deemed as being committed during the course of employment. Similarly an employer is not responsible for all the actions of their employees that occur on their premises, only those that amount to a tort and that are deemed as being committed during the course of employment. An employer can be vicariously liable for intentional torts committed by their employees, as well as negligence. The court might consider working hours when applying the close connection test, but it will not be determinative, especially where the event is a work event and held on the employer’s premises.
A motorcyclist is involved in a road traffic accident caused by another driver’s negligent driving and they suffer a serious leg injury. Although the motorcyclist’s leg was fine immediately before the accident, medical evidence shows that the long-term effects of the leg injury were made substantially worse by a previous leg injury that the motorcyclist had suffered when rock-climbing a few years ago.
Can the negligent defendant driver argue that they only owe damages for the effects of the leg injury in a person who did not have a previous leg injury?
Select one alternative:
Yes. A leg injury is reasonably foreseeable as a result of driving negligently, but it is not foreseeable that the claimant will have a pre-existing leg injury that could be made worse by an accident.
No. A leg injury is reasonably foreseeable as a result of driving negligently, and the defendant will be liable for the full extent of that harm, even if that harm has been aggravated by the motorcyclist’s own weakness.
No. Personal injury is reasonably foreseeable as a result of driving negligently, and the defendant will be liable for the full extent of any personal injury caused.
No. A leg injury is reasonably foreseeable as a result of driving negligently, and the defendant need not foresee the exact way in which this harm occurs.
Yes. A leg injury is reasonably foreseeable as a result of driving negligently, but it is the motorcyclist’s fault for riding their motorbike when they had a pre-existing injury.
No. A leg injury is reasonably foreseeable as a result of driving negligently, and the defendant will be liable for the full extent of that harm, even if that harm has been aggravated by the motorcyclist’s own weakness.
The correct answer is “No. A leg injury is reasonably foreseeable as a result of driving negligently, and the defendant will be liable for the full extent of that harm, even if that harm has been aggravated by the motorcyclist’s own weakness”. The type of damage suffered here (leg injury) was reasonably foreseeable as a result of negligent driving. Once the type of damage suffered is reasonably foreseeable, the defendant is liable for the full extent of those damages (Vacwell Engineering v BDH Chemicals [1971] 1 QB 88), even if those damages have been aggravated by the claimant’s own weakness (Smith v Leech Brain [1962] 2 QB 405) – the ‘thin skull’ rule. So here the defendant would be liable for the full extent of the leg injury even though the extent of the injury has been aggravated by the motorcyclist’s pre-existing injury. Whilst it is true that the defendant need not foresee the exact way in which the harm occurs, this legal principle is not relevant to the facts of the question. The option referring to personal injury is true, but it is not as accurate as the option referring to the specific injury (the leg injury) and the ‘thin skull’ rule.
Some nine-year-old children are playing a very common game played by children in a school playground. The playground supervisor tells the children to stop playing the game as they are worried one of the children will get hurt, even though the game is not actually banned at the school. The children do not listen, and a child accidently runs backwards into the supervisor, causing the supervisor to fall over and suffer a back injury. The supervisor sues the child in the tort of negligence for their back injury.
Which of the following statements best describes the standard of care expected of the child, and whether the child has fallen below this standard?
Select one alternative:
The child will be judged by the standard of care of a reasonably competent nine-year-old and is unlikely to have fallen below this standard. Children cannot be in breach of duty to adults.
The child will be judged by the standard of care of a reasonably competent child and is unlikely to have fallen below this standard. It is normal for children to run backwards while not foreseeing injury resulting from their actions.
The child will be judged by the standard of care of a reasonably competent nine-year-old and is likely to have fallen below this standard. A reasonable nine-year-old would have foreseen the risk of injury having been told to stop playing the game.
The child will be judged by the standard of care of a reasonably competent nine-year-old and is unlikely to have fallen below this standard. It is normal for nine-year-olds to run backwards while not foreseeing injury resulting from their actions.
The child will be judged by the standard of care of a reasonably competent person and is unlikely to have fallen below this standard. A reasonable person would not foresee injury from running backwards in a playground.
The child will be judged by the standard of care of a reasonably competent nine-year-old and is unlikely to have fallen below this standard. It is normal for nine-year-olds to run backwards while not foreseeing injury resulting from their actions.
The correct answer is “The child will be judged by the standard of care of a reasonably competent nine-year-old and is unlikely to have fallen below this standard. It is normal for nine-year-olds to run backwards while not foreseeing injury resulting from their actions”. Where the defendant is a child, the standard of care required will be that of the reasonable child of the defendant’s age (Mullin v Richards [1998] 1 All ER 920) so, in this case, that of a reasonable nine-year-old. It is highly unlikely the nine-year-old has fallen below this standard as a nine-year-old could not reasonably have foreseen any significant risk of the likelihood of injury (even though the children were told to stop playing, the game was not banned in the school). This explanation illustrates why the other options are incorrect. A child can be in breach of duty to adults if they have fallen below the standard of care of the reasonable child of the same age.
A patient suffered from a painful benign tumour in their right foot. It was so painful, there were days they could not walk on their right foot at all. The patient’s doctor advised that they undergo a surgical procedure to remove the benign tumour. The patient agreed and had the surgery. Since the surgery, however, the patient has suffered increased pain, having developed chronic pain syndrome. This was a known 4% risk of the surgery performed by the doctor. The doctor did not warn the patient of this risk as it was minimal, even though other doctors would have done.
Which of the following statements best explains whether the doctor breached the duty of care owed to the patient?
Select one alternative:
The doctor is in breach of duty for failing to advise the patient of a material risk involved in recommended treatment.
The doctor is in breach of duty for failing to advise the patient of all risks involved in recommended treatment.
The doctor is in breach of duty because the doctor has failed to act in accordance with a practice accepted as proper by a responsible body of doctors.
The doctor is not in breach of duty because the patient would have had to have gone ahead with the surgery even if they had known about the 4% risk.
The doctor is not in breach of duty because a 4% risk is not a material risk.
The doctor is in breach of duty for failing to advise the patient of a material risk involved in recommended treatment.
The correct answer is “The doctor is in breach of duty for failing to advise the patient of a material risk involved in recommended treatment”. The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 confirmed that the correct legal test for determining whether a doctor is in breach of duty for failing to advise on risks, was the material risk test. Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. A material risk is one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent. Here a 4% risk of increased chronic pain would be a risk that the reasonable person would attach significance to, when they are agreeing to surgery which is intended to alleviate pain. It is therefore a material risk which the doctor should have advised the patient about prior to the surgery. Note that the test is to advise on material risks, not all risks. The Bolam Test is not relevant to failure to advise on risk, so it is irrelevant that the doctor has not acted in accordance with a practice accepted as proper by a responsible body of doctors. There is no evidence that the patient would have had to go ahead with the surgery even if they had known about the risk.
A homeowner asks their friend, who is a qualified architect, to draw up some plans for a loft conversion to their home. The homeowner is an accountant and has no skill or knowledge in relation to architectural plans, so makes it clear to the friend that they will be relying on their friend’s knowledge for the plans. The friend agrees to draw up the plans and insists that they will do it free of charge. The homeowner’s builders rely on the architectural plans drawn up by the friend and it soon becomes apparent that the plans relied upon were inaccurate and the loft is not suitable for use. This will cost the homeowner £50,000 to repair.
Which of the following statements best explains whether the homeowner is owed a duty of care by the architect for the £50,000 damage?
Select one alternative:
The homeowner is not owed a duty of care because they did not pay the architect for the plans.
The homeowner is owed a duty of care because the homeowner reasonably relied on the architect’s plans and the architect voluntarily assumed responsibility for the correctness of their plans.
The homeowner is owed a duty of care because the architect voluntarily assumed responsibility for the correctness of their plans. They did not include a disclaimer in their advice.
The homeowner is not owed a duty of care because the architect was advising the homeowner on an informal basis.
The homeowner is owed a duty of care because the homeowner reasonably relied on the architect’s plans.
The homeowner is owed a duty of care because the homeowner reasonably relied on the architect’s plans and the architect voluntarily assumed responsibility for the correctness of their plans.
The correct answer is “The homeowner is owed a duty of care because the homeowner reasonably relied on the architect’s plans and the architect voluntarily assumed responsibility for the correctness of their plans”. The homeowner has suffered pure economic loss (they need to repair a defective product – the loft). They might be owed a duty of care as this is pure economic loss caused by a negligent statement (the architect’s plans). Here it seems two of the tests from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 are satisfied, that of reasonable reliance and that of assumption of responsibility. Regarding reasonable reliance, the homeowner relied on the architect’s plans; it was reasonable for the homeowner to rely on the architect’s plans (the architect possessed special skill and knowledge which the homeowner did not have and, despite the advice being given for free, the architect held themselves out as giving considered advice that they knew was very important to the homeowner); and the architect knew that the homeowner was relying on the plans. In relation to assumption of responsibility, the facts are similar to Lejonvarn v Burgess [2017] EWCA 254 in which a professional landscape architect owed her friends a duty of care for advice she had given in relation to their garden, even though the advice was given free of charge. She possessed a special skill and had assumed responsibility for the work, on which the claimants had relied. In addition, looking at Caparo Industries plc v Dickman and others [1990] 2 AC 605 criteria, (1) the architect communicated the plans to the homeowner (2) the architect knew the purpose for which the homeowner would use the advice (3) the architect knew the claimant would rely on the plans without independent enquiry and (4) the homeowner acted upon the advice. This explanation illustrates why the other options are incorrect. The options that only refer to reasonable reliance or assumption of responsibility are incorrect, because are more accurate statement would refer to both tests.
A cyclist is involved in a serious road traffic accident due to the negligence of a bus driver. The cyclist suffers brain damage as a result of the accident and can no longer work as an accountant.
Which of the following statements best describes what remedies the cyclist can claim from the bus driver in the tort of negligence?
Select one alternative:
The cyclist can claim special damages for lost earnings before trial. They can also claim general damages for (1) the pain, suffering and loss of amenity for the brain damage; and (2) lost earnings post-trial.
The cyclist can claim special damages for lost earnings before trial. They can also claim general damages for the pain, suffering and loss of amenity for the brain damage.
The cyclist can claim general damages for lost earnings before trial. They can also claim special damages for (1) the pain, suffering and loss of amenity for the brain damage; and (2) lost earnings post-trial.
The cyclist can claim special damages for any lost earnings pre- and post-trial. They can also claim general damages for the pain, suffering and loss of amenity for the brain damage.
The cyclist can claim special damages for any future loss of earnings. They can also claim general damages for the pain, suffering and loss of amenity for the brain damage.
The cyclist can claim special damages for lost earnings before trial. They can also claim general damages for (1) the pain, suffering and loss of amenity for the brain damage; and (2) lost earnings post-trial.
The correct answer is “The cyclist can claim special damages for lost earnings before trial. They can also claim general damages for (1) the pain, suffering and loss of amenity for the brain damage; and (2) lost earnings post-trial.” Special damages cover specifically provable and quantifiable financial losses at the time of trial. This would include the cyclist’s loss of earnings incurred up to the date of trial. General damages cover future financial losses, which cannot be specifically proven. This would include any future loss of earnings that the cyclist might suffer after the trial. General damages also includes a sum of money for the pain, suffering and loss of amenity caused by the defendant’s negligence.
A company owns a warehouse where it stores several hundred mattresses, before shipping them to various shops around the country to be sold. A fire starts accidently at the warehouse and, given the flammability of the mattresses, the fire quickly spreads onto the neighbouring property causing substantial damage.
Which of the following statements is correct, in relation to a claim by the neighbour against the company under the rule in Rylands v Fletcher?
Select one alternative:
This claim will not succeed because there was no escape.
This claim will succeed because the fire escaped from the company’s property to the neighbouring property, causing damage.
This claim will succeed because the storage of several hundred mattresses is a non-natural use of land.
This claim will not succeed because the fire was not reasonably foreseeable.
This claim will not succeed because the fire was an act of God.
This claim will not succeed because there was no escape.
The correct answer is “This claim will not succeed because there was no escape”. To succeed in a claim under Rylands v Fletcher, the claimant must prove that the ‘thing’ (here, the mattresses) that the defendant brought onto their land escaped from the defendant’s land to the claimant’s land. This has not happened here – it is the fire that escapes, not the mattresses. The defendant did not bring the fire onto its property. The fact pattern in the question is very similar to the case of Stannard v Gore [2012] EWCA Civ 1248 where tyres spread the fire and the claim failed as it was not the tyres that escaped. It is not the fire that needed to be foreseeable for a claim to succeed, but the damage in the event of an escape of the mattresses. It is unlikely that storage of mattresses will be seen as a non-natural use of land – it is not a use which poses an increased risk over and above that of a normal use. There is no escape, so no liability under Rylands v Fletcher, therefore there is no need to consider defences (act of God).
A local council owns a park with an artificial rock-climbing wall on site. A teenager visits the park, entering via a carpark and walking half a kilometre to the rock-climbing wall. There is a sign in the car park that reads ‘Take care when rock-climbing. The council will not be liable for any injuries or loss when rock-climbing howsoever caused.’ About 5 metres up the rock-climbing wall, one of the climbing holds (the ‘rocks’ that support a climber’s feet and hands) is loose. As the teenager grabs the loose climbing hold, it comes away from the wall and the teenager falls to the ground, breaking both legs.
Which of the following statements is most accurate in relation to a claim brought by the teenager against the council under the Occupiers’ Liability Act 1957?
Select one alternative:
It is highly unlikely the teenager’s claim will succeed against the council. The teenager consented to the risk of injury by choosing to use the rock-climbing wall (an obvious danger).
It is highly unlikely the teenager’s claim will succeed against the council. The council has warned visitors to take care when rock climbing.
It is highly likely the teenager will succeed in a claim against the council. The warning was insufficient to discharge the duty owed by the council.
It is highly likely the teenager will succeed in a claim against the council. It was the council’s responsibility to guarantee the safety of the rock-climbing wall.
It is highly unlikely the teenager’s claim will succeed against the council. The council has excluded liability for any injuries or loss caused by rock-climbing.
It is highly likely the teenager will succeed in a claim against the council. The warning was insufficient to discharge the duty owed by the council.
The correct answer is “It is highly likely the teenager will succeed in a claim against the council. The warning was insufficient to discharge the duty owed by the council”. Under s.2(1) of the Occupiers’ Liability Act 1957 (the ‘OLA 57’) the council (the occupier) owes the teenager (the visitor) a duty of care. Section 2(2) of the OLA 57 states that this is a duty to take reasonable care to see that the visitor is reasonably safe in using the premises (here, the rock-climbing wall which is part of the park). An occupier must therefore do all that they reasonably can to ensure their visitor is safe: it does not mean they have to guarantee the safety of the visitor. Where there is adequate warning of any danger, the occupier may have discharged this duty. To do this, the warning should tell the visitor what the danger is, where it is and how to avoid it (Roles v Nathan [1963] 1 WLR 1117). The council’s warning does not do this – it does not inform the teenager what the dangers of rock-climbing could be and how to avoid those dangers. The teenager has not consented to the risk of injury by using the rock-climbing wall – as a visitor they are entitled to expect that the rock-climbing wall will be reasonably safe. Under s.65(1) of the Consumer Rights Act 2015, the council cannot exclude or restrict their liability for personal injury resulting from a breach of the duty under the OLA 57.
After consuming large quantities of alcohol, two friends drove home together from the pub (one was the driver, and one was the passenger). The passenger encouraged the driver to drive at 90mph in a 30mph zone, and to swerve across the road to scare other drivers driving in the opposite direction. The driver collided with another car and was killed. The passenger suffered from brain damage.
Which of the following defences (if any) are most likely to succeed if the passenger brings a negligence claim against the estate of the driver for their brain damage?
Select one alternative:
Illegality and Contributory Negligence
Contributory Negligence
Consent
Illegality and Consent
Illegality
The correct answer is “Illegality”. The fact pattern in the question very much mirrors the facts from Pitts v Hunt [1991] 1 QB 24 in which illegality was successfully argued. Illegality is a complete defence. It is also likely that the test from Patel v Mirza [2016] UKSC 42 would be satisfied: the offence of dangerous driving aims to protect the public and denying the claim would enhance this purpose by deterring others from doing the same; and denying the claim would be a proportionate response (the offence is very serious and was intentional; the parties were equally culpable; and there was a causal link between the illegality and the negligent driving). The estate of the driver would be unable to rely on consent because s.149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from passengers. The estate of the driver could argue contributory negligence, but illegality is likely to succeed, and this is a complete defence.
Paramedics were called to a football stadium which was on fire due to the negligence of the owners of the stadium. A vehicle parked at the stadium caught fire and exploded causing injury to some spectators of the football game and one of the paramedics. A programme seller at the match witnessed the explosion, but they were over 500 metres away from the vehicle that exploded (outside the blast radius) and so suffered no physical injury. Following the incident, however, the programme seller developed traumatic neurosis as a result of what they witnessed. The programme seller was in a new relationship with the injured paramedic.
Will the owners of the stadium owe the programme seller a duty of care for their traumatic neurosis?
Select one alternative:
It is highly likely a duty of care will be owed. The programme seller is a primary victim and personal injury was reasonably foreseeable.
It is highly likely a duty of care will be owed. The programme seller is a secondary victim and psychiatric harm was reasonably foreseeable.
It is highly likely a duty of care will be owed. The programme seller is a secondary victim and in a relationship of close ties of love and affection with the actual victim.
It is highly unlikely a duty of care will be owed. The programme seller is a primary victim, but they do not have proximity with the explosion.
It is highly unlikely a duty of care will be owed. The programme seller is a secondary victim and not in a relationship where there is a presumption of close ties of love and affection with the actual victim.
It is highly unlikely a duty of care will be owed. The programme seller is a secondary victim and not in a relationship where there is a presumption of close ties of love and affection with the actual victim.
The correct answer is “It is very unlikely a duty of care will be owed. The programme seller is a secondary victim and not in a relationship where there is a presumption of close ties of love and affection with the actual victim.” The programme seller is a secondary victim because they have suffered psychiatric harm due to fear for someone else’s safety. They were not in fear of their own safety, which is why they are not a primary victim. In order to prove that a duty of care is owed to a secondary victim, they must satisfy all of the Alcock criteria (proving psychiatric harm was foreseeable is not enough). These criteria include proximity of relationship between the claimant and actual victim (here, the programme seller suffering neurosis and the injured paramedic). In order for there to be the relevant proximity, there must be close ties of love and affection between the claimant and actual victim. These close ties must be proved by the claimant, although this can be rebuttably presumed in the case of parents, children, spouses and engaged couples. Every individual case turns on its facts but to date no claimant outside of the presumed relationships of close ties of love and affection has been successful.
An orchestra company (the ‘Company’) employs a violinist. The violinist feels that the noise levels at rehearsals are much higher than any they have been used to, so brings a sound level meter to a rehearsal which shows a decibel reading well above the levels permitted by noise regulations. Following rehearsals, the violinist suffers from tinnitus (a ringing noise in their ears). The Company had told their employee conductor to ensure ear protection was worn by all musicians. However, whilst the conductor handed out ear protection to all musicians (including the violinist), the conductor also said repeatedly that the ear protection was a waste of time and a better performance could be achieved without the protection. None of the musicians wore the ear protection.
Which of the following statements is most accurate in relation to an employer’s primary liability claim brought by the violinist against the Company?
Select one alternative:
The Company has breached its duty of care owed to the violinist because it failed to provide the relevant safety equipment and failed to provide competent fellow employees.
The Company has not breached its duty of care owed to the violinist because the fault lies with the conductor rather than the Company.
The Company has not breached its duty of care owed to the violinist because the violinist chose not to wear the ear protection provided by the Company.
The Company has breached its duty of care owed to the violinist because it failed to provide competent fellow employees.
The Company has breached its duty of care owed to the violinist because it failed to provide a safe system of work and failed to provide competent fellow employees.
The Company has breached its duty of care owed to the violinist because it failed to provide a safe system of work and failed to provide competent fellow employees.
The correct answer is “The Company has breached its duty of care owed to the violinist because it failed to provide a safe system of work and failed to provide competent fellow employees”. It is not enough for an employer to simply provide the safety equipment (here, the ear protection), they are also under a duty to encourage or insist that it is worn (i.e. to implement a safe system of work). This duty is personal and non-delegable meaning the employer can delegate performance of the duty, but not liability for its breach, so it is irrelevant that it was the conductor who said the safety equipment was a waste of time. Employers are directly liable if those they have entrusted with responsibility fail to exercise reasonable care in respect of employee safety. The Company has also failed to provide competent fellow employees (the conductor) if they knew, or ought to know, that the conductor was telling musicians not to wear the ear protection. The Company is not in breach for failing to provide safety equipment because it did in fact provide the relevant safety equipment (it just failed to ensure that it was worn).
