M II

Question 1

A claimant is not happy with the decision made by the District Judge on the small claims track and wishes to appeal.

Which of the following is the correct route to appeal?

The High Court.
The Court of Appeal.
Appeal to a Senior Circuit Judge at the County Court.

Answer 1

(E) If a claimant is unhappy with the decision of a District Judge in a small claims case, appeal is to a Senior Circuit Judge at the County Court. As a result, none of the other choices is correct.

Question 2

At the beginning of each retainer, a firm sends information it believes clients need in accordance with the Code of Conduct as various separate documents attached to an email. This email includes costs information. A client received and acknowledged this email but is now refusing to pay his bill, complaining that he has not received a formal ‘client care’ letter in the post.

Is the client’s complaint likely to succeed?

No, because while the firm was required to send a client care letter, the client is not entitled to withhold the payment.

No, because a firm is not obligated to send a client care letter.

No, because the firm provided the relevant information at the outset of the retainer.

Answer 2

(D) The Code does not state that a formal client care letter must be sent at the beginning of each retainer. A firm can decide how best to meet the needs of its clients in this regard. There is no suggestion in the fact pattern that the client did not want to receive the information by email, and the client acknowledged receipt of the email communication received from the firm. (A) is incorrect. It is not mandatory to send a client care letter; firms can choose how to send the initial information required by the Code. (B) is incorrect for the same reason. (C) is incorrect because while it is true that a client care letter is not required, a solicitor still has an obligation to provide the client with information about the matter.

Question 3

The UK government has agreed to and ratified a new international treaty aimed at reducing the stock of nuclear weapons across the world. However, the UK government has announced that despite the treaty, it has decided not to reduce its stock of nuclear weapons. The Association against Nuclear Weapons wishes to challenge this decision before the courts.
How are the courts likely to respond to any challenge against the UK government’s decision?

Decisions of the UK government cannot be challenged before the courts.

The decision of the UK government is legal under UK law.

Answer 3

E) The decision of the government is legal under UK law. Under the doctrine of parliamentary sovereignty, an international treaty does not have effect in UK law unless the treaty is incorporated into UK law by an Act of Parliament. Nothing in the facts indicates that an Act of Parliament was passed. Thus, the government’s decision did not violate UK law. (A) is incorrect because, as discussed, the treaty was not part of UK law. (B) is incorrect because decisions of the government may be challenged in court.

Question 4

The Prime Minister wishes to appoint a member of the House of Lords to his Cabinet as Secretary of State for Business. The minister is not a member of the Privy Council.
Does this pose a problem for the Prime Minister?

Yes, because all ministers must have a seat in the House of Commons.

No, because ministers can come from the House of Commons or the House of Lords.

Answer 4

(E) The appointment does not pose a problem for the Prime Minister. Ministers must have a seat in either the House of Commons or the House of Lords, although most ministers come from the House of Commons. This ensures that the government is accountable to Parliament.

Question 5

A statute provides that a person found drunk in charge of a carriage may be arrested without a warrant. A man was arrested without a warrant when he was found drunk in charge of a bicycle. As a defence to the arrest, the man argues that a bicycle is not a carriage and that the arrest, accordingly, was invalid.

If the court were to convict, which rule of interpretation would have been used?

The literal rule.
The mischief rule.
The purposive approach.
The golden rule.

Answer 5

The mischief rule.

Question 6

In a debate in the House of Commons on the crime rate, the Home Secretary claimed that crime had fallen whilst she has been Home Secretary. However, just before the debate, a civil servant informed the Home Secretary that crime had actually risen by 15% whilst the Home Secretary has been in office. A newspaper has since revealed this information to the public.

How is the Home Secretary expected to respond?

She should resign as Home Secretary.
She should correct the error and continue in office.

Answer 6

(A) The Home Secretary would be expected to resign. All government ministers have a fundamental duty not to mislead Parliament. If a minister inadvertently misleads Parliament, the minister must correct the error as soon as possible, but if the minister knowingly misleads Parliament, the minister would be expected to resign. Here, the Home Secretary has knowingly misled Parliament, since she knew at the time of the debate that crime had not fallen during her time in office, and so would be expected to resign immediately. (B), (C), (D), and (E) are incorrect because the only appropriate way for the Home Secretary to respond in this situation is to resign.

Question 7

A man has a breach of contract claim for £13,500, with complex issues that require the submission of expert evidence. The man wants to know in which of the UK courts his case is likely to be heard.
Which is most likely to be the correct court of first instance for his claim?

The County Court.
The High Court.

Answer 7

C) Usually, the County Court deals with civil cases and will hear all small claims track cases (valued at under £10,000) and most fast track cases (£10,000 to £25,000). However, complex fast track cases, such as the case in the scenario here, are likely to be heard by the High Court, which will also hear multi-track cases (exceeding £25,000 and complex). (A) is incorrect for the reasons given above.

Question 8

The Occupier’s liability Act 1984 applies to trespassers injured by an activity on the land

True or False

Answer 8

The Occupier’s liability Act 1984 applies to injuries arising out of a condition of the land and not an activity

Question 9

There are two reasonableness requirements in the duty owed under the Occupier’s Liability Act 1957

True or False

Answer 9

The Occupier’s Liability Act 1957 requires the occupier to use reasonable care under the circumstances to keep visitors reasonably safe in using the premises.

Question 10

An occupier remains liable for a dangerous condition created on the premises by an independent contractor even if the occupier acted reasonably in selecting the contractor.

True or False

Answer 10

Occupier will not be liable for the negligence of independent contractors that cause harm to visitors on the premises if the occupier delegated the duty reasonably

Question 11

A business operator may exclude liability for property damage caused by conditions on the premises under the 1957 Act.

True or False

Answer 11

An occupier acting in the course of business may inform visitors that no liability is accepted for damage to or loss of property

Question 12

The occupier must actually be aware that the trespasser is on the premises for a duty to arise under the 1984 Act

True or False

Answer 12

A duty only arises under the 1984 Act if the occupier should reasonably be aware that a trespasser may be in the vicinity of the danger

Question 13

A warning to a trespasser of a dangerous pathway will not satisfy the duty owed under the 1984 Act unless an alternate route is provided

True or False

Answer 13

Unlike under the 1957 Act, a warning of a danger under the 1984 Act will satisfy the duty owed even if an alternate is not provided.

Question 14

A tenant in an apartment building next door to a 24-hour truck terminal can sue for private nuisance

True or False

Answer 14

A private nuisance may be brought by the tenant because a tenant is an occupier with a recognised legal interest in the land

Question 15

For statutory authority to serve as a defence in a private nuisance action, the statute must expressly authorise the activity

True or False

Answer 15

A statute may expressly or impliedly authorise an activity that constitutes a nuisance

Question 16

The claimant does not have to prove that the defamatory statement was false

True or False

Answer 16

If a statement is established to be defamatory, it is presumed to be false

Question 17

The innocent dissemination defence does not protect a commercial publisher of the defamatory statement

True or False

Answer 17

The innocent dissemination defence protects only people who are involved in the publication other than as authors, editors or publishersl in other words, those involved in printing producing distributing or selling printed material containing the statement

Question 18

A ship owner hires their ship to a customer for two years. It is a term of the contract that the ship be seaworthy. It becomes clear that the crew are unable to sail the ship properly due to its antiquated machinery and because they are insufficient in number. During the voyage, the ship breaks down several times and is out of service undergoing repairs for many weeks to make it seaworthy. After it has been repaired, only 17 months remain of the two-year contract.

Can the customer terminate the contract for breach?

Yes. The term requiring the ship to be seaworthy was a condition which entitled the customer to terminate the contract.

No. The term requiring the ship to be seaworthy was an innominate term which only entitled the customer to sue for damages.

Yes. The term requiring the ship to be seaworthy was an innominate term which entitled the customer to terminate the contract.

Answer 18

(C) Where it is not clear whether a term of a contract is a condition or a warranty, the court will class it as an innominate term and look at the effect of the breach when deciding what remedy should be available to the innocent party. The court will consider whether the occurrence of the breach deprived the innocent party of substantially the whole benefit of the contract. If it did, the court will treat the term as akin to a condition and the innocent party will be entitled to terminate the contract. If it does not, then the court will treat the term like a warranty and the innocent party will only be entitled to damages. In this scenario, the requirement that the ship is seaworthy is not classified by the contract as either a condition or warranty. Unseaworthiness could cover numerous different breaches, some fundamental but others trivial, so this term is an innominate term and the court will need to consider the nature of the event to which the breach gives rise. Here, the customer had received the benefit of the contract for 17 out of 24 months, so the court is likely to hold that the breach was adequately remedied by damages.

Question 19

Hamid carries out occasional do-it-yourself projects on his house. He goes to a builder’s merchant and says that he is looking for sealant to use around the double-glazed windows in his house. He further explains that the sealant needs to be suitable for outdoor use. The builder’s merchant tells him that Quickflex sealant is what he needs and sells him a tube of Quickflex. Hamid uses the Quickflex, but it deteriorates quickly and begins to leak. Another builder’s merchant tells Hamid that Quickflex is suitable only for indoor use.

Which of the following correctly states the position in relation to Hamid’s purchase of the Quickflex sealant?

The sale breached a condition of fitness for outdoor use under the Consumer Rights Act 2015.

The sale breached a condition that the sealant was of satisfactory quality under the Consumer Rights Act 2015.

Answer 19

(C) Hamid is a consumer and the builder’s merchant is a trader. When a consumer makes his purpose known to a trader, under the Consumer Rights Act 2015 a term will be implied that the goods supplied must be reasonably fit for that purpose. Here, Hamid told the merchant that he wanted a sealant for outdoor use, and the sealant supplied was not suitable for outdoor use. Therefore, the implied term has clearly been breached.

Question 20

A farmer enters into a contract for the sale of land to a property developer.

Which of the following is required to make this particular contract binding because it is a contract for the sale of land?

Offer, acceptance, consideration, and the intent of the parties to be legally bound.

The contract is made in writing.

The contract is executed by deed.

Answer 20

(D) A contract for the sale of land is required to be in writing, so (D) is the correct answer. All contracts require that (1) the parties are in agreement, there is valid consideration, and the parties intended to be legally bound, (2) the parties have the capacity to enter into the contract, and (3) the contract is not illegal as formed.

Question 21

To be valid, a contract requires offer, acceptance, and consideration. However, even if all these elements are present, a contract may still be void due to lack of capacity.

Which of the following is not a situation where a contract may be void for lack of capacity?

One of the parties lacks mental capacity.

One of the parties is under the age of 18 and the
contract is for the sale of necessary goods as defined by the Sale of Goods Act 1979.

One of the parties was intoxicated at the time the contract was entered into.

One of the parties is a shareholder of a company, contracting on behalf of the company.

Answer 21

The doctrine of privity of contract means that only the parties to the contract can acquire rights under it. A number of common law exceptions to the rule exist.

Question 22

Which of the following is not a common law exception to the doctrine of privity?

Subrogation.
Agency.
Trusts.
Assignment.
The Contracts (Rights of Third Parties) Act 1999.

Answer 22

(E) The Contracts (Rights of Third Parties) Act 1999 is a statutory exception to the doctrine of privity.

Question 23

A heating engineer recommended a boiler for installation in a homeowner’s house. The homeowner agreed to the recommendation and they signed a contract with the engineer under which the engineer will install the boiler. The boiler turned out to be inadequate to heat the house. The homeowner then discovered a clause in the contract excluding all liability for breach of all statutory implied terms. The exclusion is written in very legal language and it is in tiny print; there is no other reference to it in the document and the engineer never mentioned it.

Can the engineer rely on the exclusion?

No, because it was insufficiently obvious to be incorporated in the contract.

No, because it is automatically void.

Not unless it is fair, and this is unlikely because it is listed as a term which is likely not to be fair.

Not unless the engineer can prove that it is reasonable.

Answer 23

No, because it is automatically void.

Question 24

A woman places an advertisement in the local paper. ‘Computers for sale, £70 each’. A customer, upon reading the advertisement, immediately contacts the woman to place an order for a computer. Unfortunately, there has been a misprint and the price should have read £700.

The customer has accepted the woman’s offer and therefore is entitled to the computer for £70.

The newspaper advertisement constitutes an invitation to treat rather than an offer, so the woman has no legal obligation to sell a computer to the customer.

Answer 24

D) is correct because the general rule under contract law is that newspaper advertisements are mere invitations to treat, rather than offers. (A) is incorrect because it is not possible for the customer to accept an invitation to treat. It is the customer who makes an offer to the woman to buy a computer which it is then open to the woman to accept or not as she sees fit. (B) is incorrect because there is no agreement that is required to be supported by consideration, and even if there were, consideration can follow after the contract has been agreed. This is executory consideration, for example, cash payment on delivery.

Question 25

In contract law, there are several rules governing what constitutes good consideration for the purposes of a valid contract.

Which of the following is incorrect?

Performance of an existing statutory or contractual duty is not generally good consideration.

Consideration must be adequate.

Consideration must move from the promisee to the promisor.

Past consideration is not good consideration.

Consideration must be sufficient.

Answer 25

Consideration must be adequate.

Question 26

A solicitor went to work on a Saturday. When she signed in, the security guard told her that all staff were required to leave the building by 5.00 pm and were not authorised to remain on the premises after that time. However, at the end of the day the solicitor had not finished her work and so decided to remain after 5.00 pm. At 5.30 the security guard locked all the doors and left the premises. The guard carelessly failed to check whether everyone had left the building so he was not aware that the solicitor had remained there. When the solicitor tried to leave the premises, she discovered that she was locked in. She telephoned for help and was released about 30 minutes later.

Which of the following statements best describes the outcome of a claim by the solicitor against the guard for false imprisonment?

The solicitor’s claim is not likely to succeed because

the solicitor became a trespasser by staying in the building past 5.00 p.m.

The solicitor’s claim in not likely to succeed because the guard did not know that she was locked in the building.

The solicitor’s claim is likely to succeed provided she can show that she was harmed by the confinement.

Answer 26

(D) The solicitor’s claim is unlikely to succeed. For a successful claim in false imprisonment, the defendant’s actions in confining the claimant must be intentional. This is not satisfied because the guard did not know the solicitor was locked in the building. (A) is not correct. For a successful claim in false imprisonment it is not sufficient that the defendant acted negligently.

Question 27

An employer has two employees, X and Y, who work together. Recently, X very carelessly switched on a machine as Y was cleaning it, causing Y to suffer a serious injury. Prior to this incident X had no previous record of any kind of careless behaviour. The employer can prove that it checked X’s qualifications before employing him and provided regular safety training during his employment. An expert’s report on the machine shows that there was no defect in the machine, and it would have been safe if used properly.

In a claim by Y against the employer to recover damages for the injury caused by X, which of the following statements best describes the outcome?

The employer is liable to Y because X committed a tort against Y during the course of his employment.

The employer is liable to Y because the employer owes Y a non-delegable duty of care, which has been breached.

The employer is not liable to Y because the employer took all reasonable care to ensure that X was properly qualified and had proper training.

The employer is not liable to Y because X had no previous record of carelessness, so the employer had no reason to anticipate his behaviour.

Answer 27

(A) The employer is liable to Y. X has committed the tort of negligence against Y. This tort was committed during the course of X’s employment (on the facts, there was a sufficiently close connection between the employment and the tort). Therefore, the employer is vicariously liable to Y for X’s tort. (B) is not correct because it does not state the correct reason why the employer is liable to Y. It is true that the employer owes a non-delegable duty of care to Y. However, on the facts, this duty does not appear to have been breached. The employer has taken reasonable care to provide a safe plant and safe equipment (the machine was not defective). The employer has taken reasonable care to provide competent fellow staff (X’s qualifications were checked, and regular training provided). There is nothing to suggest that the employer failed to provide a safe place of work or safe system of work

Question 28

A woman borrowed a car from a friend to drive on a motoring holiday. The woman packed her luggage into the car. She then left the car in a car park but failed to pay for a ticket giving her the right to park there. Whilst she was away, a lorry driver crashed into the car. The car was so badly damaged that it was unusable. The woman had to hire a replacement car for the remainder of her motoring holiday. Also, all of her luggage which was in the car was destroyed and she had to spend a substantial amount on replacing it.
In a claim by the woman against the lorry driver, which of the following statements is correct?

The woman cannot recover any damages for the car and replacement car hire, but she can recover for the cost of replacing her luggage.

The woman cannot recover any damages for the car, but she can recover for the cost of the replacement car hire and the cost of replacing the luggage.

The woman cannot recover any damages for the costs of hiring a replacement car nor for the cost of replacing her luggage because this is all pure economic loss.

Answer 28

(C) The woman can recover for the cost of her luggage. Damage to property which did not belong to the claimant is classed as pure economic loss and cannot be recovered. So, the woman cannot recover for the damage to the car and hire of a replacement because the car did not belong to her. However, she can recover for the cost of replacing the luggage because this is property which did belong to her, so the cost of replacing it is not pure economic loss.

Question 29

After a sporting event at a stadium, one of the fans sought out the referees to complain about their handling of the game. The fan took out a loudhailer and knocked on the door of the referees’ room. When one of the referees opened it, the fan began yelling at the referee through the loudhailer. The referee slammed the door shut, striking the loudhailer and jamming it against the fan’s mouth, knocking out two of his teeth.
Which of the following statements is correct?

The fan can have a claim in negligence against the referee if the referee’s actions amounted to a failure to take reasonable care.

The fan can have no claim of any kind against the referee because the referee did not foresee that his actions could damage the fan’s teeth.

Answer 29

(C) If the referee acted carelessly in striking the fan, there could be a claim in the tort of negligence. The claimant would have to show that the defendant owed the claimant a duty of care, that the defendant breached that duty, and that the defendant’s breach caused damage to the claimant. (A) is not correct. Even if the referee did not intend to strike the fan, he may still have done so carelessly, so there could be a claim in the tort of negligence. (B) is not correct. A battery can be committed by striking someone with an object.

Question 30

A cyclist was riding his bicycle along a trail with due care when a deer suddenly leaped out of the trees in front of him. The cyclist swerved to avoid hitting the deer and bumped into a jogger near him, causing the jogger to suffer cuts and bruises. The jogger also has begun to suffer from an anxiety disorder as a result of the collision, and she is afraid to jog any longer when others are nearby.

In an action by the jogger against the cyclist, which of the following best describes the likely outcome?

The cyclist did not owe the jogger a duty of care because it would not be fair, just, and reasonable to impose a duty on him in the circumstances, so therefore the cyclist would not be liable
.
The cyclist did owe the jogger a duty of care because she suffered pure psychiatric harm but was a primary victim, having been in the actual area of danger, so therefore the cyclist would be liable.

The cyclist did owe a duty of care to the jogger in respect of all her injuries but does not appear to be in breach of that duty, so therefore the cyclist would not be liable.\

Answer 30

(D) The cyclist owed the jogger a duty of care. However, on the facts, he was riding carefully and appears to have responded reasonably to the deer suddenly leaping in front of him. Therefore, he does not appear to have fallen below a reasonable standard of care and would not be in breach of duty. So, he is not likely to be liable. (A) is not correct. It is likely that the cyclist would not be liable – but this choice does not give the correct reason. The cyclist did owe the jogger a duty of care – cyclist to other trail users is an established duty situation. However, the cyclist does not appear to be in breach of that duty, as discussed above. (B) is not correct. It is likely that the cyclist would not be liable, but this choice does not give the correct reason. The jogger did not suffer pure psychiatric harm. The anxiety disorder which she suffered was psychiatric harm consequential on her physical injuries. The ordinary rules for duty of care apply, and a duty is owed. However, the cyclist does not appear to be in breach of that duty, as discussed above.

Question 31

A boy mowing his lawn with an electric mower noticed a strong vibration from the engine but continued to mow. The engine housing suddenly broke apart and pieces flew off the lawnmower. One piece struck the boy in the head, seriously injuring him. The boy’s mother, who was out shopping, came home several hours later and was told about the accident. That evening she visited him in hospital and was so distressed that she fainted. She was subsequently diagnosed with an anxiety disorder brought about by the incident. A later investigation showed that a negligent repair by a local mechanic caused the engine housing to shatter. The mother brought a claim against the mechanic, seeking recovery for the psychiatric harm she suffered.

Which of the following statements best describes the mechanic’s liability?

The mechanic is not liable because the mother was not within the area of danger from the mechanic’s negligence and suffered no physical harm.

The mechanic is not liable because the mother was away when the accident occurred.

Answer 31

D) The mechanic is not liable because the mother was away when the accident occurred. The mother has suffered psychiatric harm without physical impact. She cannot establish that the mechanic owed her a duty of care in respect of such harm. She is not owed a duty of care as a primary victim because she was not in the area of danger. As a bystander witnessing the injury to her son, she is a secondary victim. For a duty of care to be owed to her as a secondary victim, she must suffer from a medically diagnosed psychiatric condition (which she does). She must also satisfy all of the following: (1) there must be a close tie of love and affection between the claimant and the person injured by the defendant; (2) the claimant must have been present at the accident or its immediate aftermath; (3) the claimant must have witnessed the events with her own senses; and (4) it must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric injury. As she was away shopping at the time of the accident, she was not present to witness the accident with her own senses. So, no duty of care is owed to her. (A) is incorrect because it does not state the correct reason why the mechanic is not liable. The argument would be that the actions of the boy broke the chain of causation between the mechanic’s negligence and the mother’s harm. An intervening act by a third party (the boy) will only break the chain of causation where it was not reasonably foreseeable. The chain of causation is unlikely to be broken by an action which the defendant ought reasonably to have foreseen as a likely consequence of his negligence. On the facts, the actions of the boy in continuing to mow are unlikely to break the chain of causation. (B) is incorrect because it does not state the correct reason why the mechanic is not liable. It is true that the mother suffered no physical harm, but a duty of care can be owed in respect of psychiatric harm suffered without physical impact. It is also true that since she was not in the area of danger, no duty of care was owed to her as a primary victim, but a duty of care can be owed to a person outside the area of danger as a secondary victim.

Question 32

A food delivery company provided company vans for its employees to make the deliveries. One of the employees took a friend with her to help her carry the parcels and get the deliveries done more quickly. Taking the friend as a passenger was contrary to company policy, of which the employee was aware, which expressly forbid anyone other than employees from travelling in company vehicles. During a delivery with her friend, the employee collided with a cyclist due to the employee’s negligence. Both the cyclist and the employee’s friend are injured as a result of the collision.

What is the position as regards the employer’s
vicarious liability for the employee’s negligence?

The employer is likely to be liable to both the cyclist and the friend because the employee’s negligence was in the course of her employment.

The employer is likely to be liable to the cyclist but is not likely to be liable to the friend because the friend was travelling in the van contrary to company policy.

Answer 32

The employer is likely to be liable to both. The employee has committed the tort of negligence against two different victims, the cyclist and the friend, and the considerations which apply to each are different. As regards the cyclist, the tort was clearly within the course of the employee’s employment (in driving the van to deliver the parcels she was doing what she was employed to do). As regards the friend, the matter is more complex because the employee disobeyed an instruction from the employer by taking the friend as a passenger. The employer may argue that, in relation to the friend’s injury, the employee was acting outside the course of her employment. However, the employee took the friend with her to help deliver the parcels more quickly, so her disobedience was for a purpose which furthered the employer’s business. Therefore, it is likely that the employee remained within the course of her employment (the prohibition limiting only the manner in which the employment was carried out rather than the scope of employment), so the employer is vicariously liable to both the cyclist and the friend

Question 33

A driver negligently crashed into a fellow motorist. As a result of the collision, the other motorist suffered a psychiatric injury and the aggravation of a pre-existing spinal injury, and a very expensive vase that the motorist was transporting in the boot of his car was smashed.
What are the likely damages that the motorist will be able to recover from the negligent driver?

Damages for the new psychiatric injury, the aggravation of the spinal injury and the damage to the expensive vase.

Damages for the new psychiatric injury and the aggravation of the spinal injury but not the damage to the expensive vase.

Damages for the new psychiatric injury only.

Answer 33

(A) The motorist is likely to recover for the spinal injury, the psychiatric injury and the damage to the expensive vase. For liability in negligence it must be shown that: (i) a duty of care existed, (ii) the defendant breached this duty of care, (iii) the breach caused loss/damage to the claimant, and (iv) the loss or damage was not too remote. In the scenario, there is a clear duty of care owed by motorists to other road users, and if the driver was driving negligently then this duty would be breached. The breach of duty in this scenario has caused the claimant loss, so the question here is what parts of the loss the driver would be liable for. Damages for psychiatric injury that accompanies physical injury can be recovered in a negligence action along with the physical injury, so the motorist is likely to recover damages for the psychiatric injury. As a general rule, the damage suffered by the claimant must have been a reasonably foreseeable consequence of the defendant’s negligence. One of the exceptions to this is the requirement for the defendant to ‘take their victim as they find them’, also known as the ‘egg shell skull’ rule. If the claimant suffers from a pre-existing condition that causes the harm from the defendant’s negligence to be more severe, the claimant can still recover for the damage. Therefore the motorist would likely be able to recover for the aggravation of the pre-existing spinal injury. A further exception to the rule that damage must be reasonably foreseeable is the ‘similar in type’ rule. Provided the type of harm was reasonably foreseeable, the precise manner in which it occurs, and the precise extent of the harm, need not be foreseeable. On the facts, it was foreseeable that property in the boot of the car could be damaged. So, the damage to the vase should be recoverable, despite the fact that the precise extent of the damage was unforeseeable because the vase was much more expensive than might have been foreseen.

Question 34

An employer wished to stage an event in a marquee. He engaged an independent contractor to erect the marquee, having carefully checked the contractor’s qualifications and experience. Once the marquee was erected the employer sent his employees to work there, serving customers. At the end of the day, after all the customers had left, the marquee suddenly collapsed. Several employees were severely injured. Evidence later showed that the contractor who erected the marquee had carelessly failed to secure the guy ropes, and this had caused the collapse.

Which of the following statements best describes the outcome in a claim by the injured employees against the employer?

The employer will be liable to the employees because he owes them a non-delegable duty to ensure the safety of their place of work and so was wrong to engage an independent contractor to erect the marquee.

The employer will be liable to the employees because he owes them an absolute duty to ensure the safety of their place of work.

The employer will be liable to the employees because the employer’s own duty of care has been broken by the contractor’s failure to exercise reasonable care.

Answer 34

(E) The employer will be liable to the employees. An employer owes his employees a duty of care in respect of their place of work. The duty is personal to the employer and non-delegable. This means that, not only must an employer take reasonable care in their own actions, they must also see that reasonable care is taken by others. So, if the employer delegates a task to someone, such as an independent contractor, if that person fails to take reasonable care, the employer’s duty is breached. (A) is not correct. It is correct to say that the employer’s duty is non-delegable (as discussed above) but this does not mean that the employer was wrong to engage an independent contractor. (B) is not correct. In the case of the non-delegable duty owed by an employer to employees, the employer is responsible for the negligence of his independent contractor, as explained above.

Question 35

A woman is walking along a road when a bucket of dirty water falls on her from above and ruins her expensive coat. On looking up she sees a man on a ladder cleaning windows. He admits that he dropped the bucket but denies that he is liable to her for the damage to her coat.
In a claim by the woman against the man, which of the following is correct?

The woman will have a successful claim in the tort of negligence because she can rely on the principle of res ipsa loquitur to establish that the man was in breach of duty.

The woman will have a successful claim in the tort of negligence provided that she can prove that the bucket fell because the man did not exercise reasonable care.

The woman will have a successful claim in the tort of negligence unless the man can prove that the bucket fell despite the fact that he exercised reasonable care.

Answer 35

(E) The woman may have a successful claim if she can show breach of duty. A duty of care is likely to be owed in situations where the defendant is a private individual who has committed a positive act (as compared to an omission) resulting in foreseeable physical harm. Under this standard, the man owed the woman a duty of care. The woman then has the burden of proving that the man was in breach of duty. Thus, she must show that the bucket fell because he failed to exercise reasonable care.

Question 36

A man contracted with his work colleague to sell her a painting that he owned. Both the man and his colleague believed the painting to be a Rembrandt. The colleague had admired the painting for some time, and the man eventually agreed to sell it to her. The agreed price was very high, owing to the fact that both believed the painting to be an old master. Two years after the painting was sold, the colleague had it valued and it turned out to be a modern reproduction.
Is the colleague entitled to claim that the contract is void?

No, because this is a mistake as to the subject matter of the contract. Such mistakes can invalidate a contract only in extreme circumstances.

Yes, because the parties have made a mistake and are at cross-purposes, therefore there is no true agreement, as required by contract law.

Yes, because the painting is not in fact an old master, therefore there has been a misrepresentation which would entitle the work colleague to rescind the contract.

Answer 36

(B) The circumstances in which a court will find a contract void due to a common mistake as to the quality of the subject matter are very limited indeed; a contract for the sale of an old master which subsequently turns out to be a modern copy is one of the examples given by the courts of a mistake that would not render the contract void. (A) is incorrect because the facts of this scenario do not give any indication that there was a representation that the painting was an old master.

Question 37

A car manufacturer contracted with a machinery supplier for the repair of a vital piece of machinery for its production line. The supplier was two months late in returning the mended piece of equipment. It was industry practice for manufacturers to keep a spare of this machinery in case of breakdowns, but the car manufacturer had not done so and sued the machinery supplier for its loss of profits for the period of time that the production line was not operational.
Will the car manufacturer be successful in its claim for loss of profit?

No. The losses suffered by the car manufacturer are too remote.

Yes. The losses suffered by the car manufacturer would have been in the reasonable contemplation of both the parties.

Yes. The losses suffered by the car manufacturer arose naturally from the breach by the machinery supplier.

Answer 37

A) Damages for breach of contract can only be recovered for loss which arises naturally from the breach or was in the reasonable contemplation of both parties. As it was industry standard to keep a spare of the piece of machinery being repaired, it was reasonable for the machinery supplier to assume that the car manufacturer would be able to carry on with production, in the absence of any information to the contrary. (B) is incorrect because if the loss was not too remote, the courts would award an appropriate level of unliquidated damages to compensate for the loss suffered, even if there is no liquidated damages clause in the contract. (C) is incorrect because, whilst ordinarily the loss suffered could be said to arise naturally from the breach, the fact that the car manufacturer should have had a spare means that the loss is likely to be too remote unless the lack of a spare was brought to the attention of the machinery supplier when the contract was concluded.

Question 38

Equitable remedies are granted at the discretion of the court, and are usually available where damages would not be an adequate remedy. Specific performance is an equitable remedy consisting of an order requiring the party in breach to perform their contractual obligations. There are, however, several situations in which specific performance would not be granted.
Which of the following is not one of those situations?

Where it would cause undue hardship to the party in breach.
Where there is no mutuality.
Where the contract involves employment.
Where the order would require the supervision of the courts.
Where restitution is available.

Answer 38

E) The availability of specific performance is not dependent on whether restitution is available. However, restitution is unlikely to be ordered where damages or an equitable remedy would be adequate. All of the other answers (A) to (D) are situations where specific performance would not be ordered by the courts and are therefore all incorrect choices.

Question 39

A builder contracted to build a house for a newly married couple. The terms of the contract provided that the builder would receive the contract price when the building was fully completed. Just before the builder had completed half of the structure, a storm struck the area and demolished the building.

What is the builder entitled to recover from the couple under the contract?

Nothing.

One-half of the fair market value of what remains of the house.

Cost of materials and reasonable labour costs.

The entire purchase price as the contract has been substantially performed.

Answer 39

A) The builder will not be able to recover anything from the couple under the contract because he has not performed his duty. The requirement for complete performance was not discharged by the destruction of the building (for example, by frustration) because construction has not been made impossible, but just more costly-the builder can rebuild it. Thus, he is not entitled to any recovery. (B) is incorrect because the contract is not divisible (it is not divided into an equal number of parts for each side, each part being the quid pro quo of the other or subject to stage payments); thus, completion of one-half of the house did not entitle the builder to half of the price. (C) is incorrect because it is not a correct measure of recovery. Also as stated above, the builder cannot recover under the contract as he did not discharge his obligation. (D) is an incorrect contract recovery because the builder has not fulfilled the requirement for complete performance. The builder has no entitlement to a quantum meruit payment because his clients have not voluntarily accepted the unfinished house.

Question 40

A gallery owner enters into a contract to sell a painting to an art enthusiast. The contract provides for cash on delivery two weeks later. Meanwhile, the gallery owner sells the painting to another gallery for more money.
What is the effect of the gallery owner’s actions on the contract with the art enthusiast?

The contract has been frustrated because it is no longer possible for it to be carried out.

The gallery owner has committed an anticipatory breach and the art enthusiast can only terminate the contract in two weeks once performance under the contract is due.

The gallery owner has committed an anticipatory breach and the art enthusiast can choose to terminate the contract immediately or in two weeks once performance under the contract is due.

The gallery owner has committed an anticipatory breach and the art enthusiast must terminate the contract immediately.

Answer 40

D) The sale to a third party is a clear repudiatory breach of the contract, and it is an anticipatory breach because performance is not yet due (an implied anticipatory breach, as the gallery owner has not expressly notified the art enthusiast). Where there is an anticipatory breach, the innocent party has the option to bring the contract to an end immediately, or affirm the contract and wait until performance is due. (A) is incorrect as this is not a frustration situation, as frustration requires that neither of the parties is at fault. In this scenario, performance of the contract is prevented by the actions of the gallery owner.

Question 41

In March, a homeowner contracted with a buyer to sell his house for £280,000, with the purchase price to be paid and the purchase deed to be delivered on 1 July. On 1 May, the buyer wrote the homeowner a letter stating that she has had second thoughts about buying the house, and she ‘won’t pay that amount of money unless you repaint the house and fix up the garden’.
If the homeowner wishes to treat the contract as breached, which of the following is true?

He may sue the buyer on receipt of the letter.

He must wait until 1 July to sue the buyer, the date on which the purchase price is to be paid.

He must make a written demand to the buyer seeking adequate assurance of performance and wait a reasonable time for a response.

He cannot sue the buyer because performance is not yet due from either party.

Answer 41

) The homeowner may sue the buyer when he receives the letter because an anticipatory breach situation exists. Anticipatory breach occurs where a promisor, prior to the time set for performance of the promise, indicates that they will not perform when the time comes. Anticipatory breach can either be express or implied by the conduct of the party in breach. The requirements for anticipatory breach are met here because the homeowner’s duty to deliver the transfer deed and the buyer’s duty to pay have yet to be performed, and the buyer’s letter expressly states that she will not pay unless the homeowner performs extra tasks beyond those agreed in the contract. In the case of anticipatory breach, the innocent party has the option to accept the breach, terminate the contract, and sue immediately. Therefore, the homeowner may sue the buyer on receipt of the letter. (B) is incorrect because, as stated above, the homeowner need not wait until 1 July to sue because the buyer’s letter amounts to express anticipatory breach. The innocent party may therefore sue immediately. (C) is incorrect because there is no requirement to seek adequate assurances of the buyer’s intent to perform when the party in breach has stated unequivocally that she will not perform. (D) is incorrect because the fact that performance is not yet due from either party means that the doctrine of anticipatory breach can apply, allowing the homeowner to sue the buyer now. (E) is incorrect because execution by deed does not preclude suing for breach of contract. The only differences between a contract executed by deed and a contract in any other form are that there is no requirement for consideration and the limitation period, which rises to 12 years from six.

Question 42

A claimant is suing a company for breach of contract. The company’s solicitors obtained a statement from the company’s shipping clerk, as it was the cleark who packed the goods that filled the claimant’s order. The statement was exchange with the other side in the usual way, but before trail, the shipping clerk quit his job and moved to NYC to pursue a career of acting.

What must the company’s solicitors do to ensure they can use the shipping clerk’s witness statement at trial?

Explain why the witness cannot be called and make an application to the court to allow the use of the statement

Send a notice to the claimant explaining the witness cannot be called and explaining why, but nothing else need be done

Answer 42

An application to court is not required. Whilst the witness statement itself serves as notice that the defendant will be relying on hearsay, because the witness will not be in court, D must notify the claimant of the fact and give reasons. In response, if C happens to know the clerk did not move to NY but stay in London, C could make an application to the court within 14 days of receiving the notice for an other to the witness to attend the trial.

Question 43

If a party serves a notice to admit a fact and their opponent refuses to admit the fact at trial, but still loses the case, are there any consequences.

No. Because the party lost the case despite proving the fact their opponent denied

Yes, the party who proved the fact may be able to recover the costs of proving the fact.

Answer 43

The party who proved the fact may be able to recover the costs of proving the fact. That’s the consequence – the winning party may be forced to pay some of the losing party’s costs.

Question 44

A well-known actress regularly visits a secluded health spa for a few days’ rest away from her hectic public life. She employs a private chauffeur to drive her to the spa and she often chats with him about the treatments she is undergoing there. Recently, the chauffeur gave an interview to a newspaper in which he revealed the location of the health spa and a full list of the actress’s usual treatments. The information, which was published in the newspaper, was true and accurate. It also presented the actress in a very positive light.
In an action in tort by the actress against the chauffeur, which of the following statements best describes the likely outcome?

The actress may have a successful claim against the chauffeur because the information disclosed was private in nature and it was not in the actress’s interest for it to be disclosed.

The actress may have a successful claim against the chauffeur because the information disclosed was about her health and there appears to be no public interest in disclosing it.

The actress is not likely to have a successful claim against the chauffeur because the information published showed the actress in a positive light so was not likely to cause any harm to her reputation.

The actress is not likely to have a successful claim against the chauffeur because all the information published was true and accurate.

Answer 44

(B) The actress may have a successful claim against the chauffeur for the tort of misuse of private information. To succeed in this tort claim, she would need to show that she had a reasonable expectation of privacy in the information. Since the information was about her health, this is likely to be satisfied. Even if she did have a reasonable expectation of privacy, she will not have a claim if it was in the public interest for the information to be disclosed. However, there is nothing to suggest such public interest on the facts. (A) is not correct because it refers to the interest of the actress rather than to the public interest in disclosure, which is the factor considered here, as discussed above. (C) is not correct because it is not a defence to an action for misuse of private information that the information disclosed was true. (D) is not correct because it is not a defence to an action for misuse of private information that the information disclosed was not likely to cause harm to the claimant’s reputation.

Question 45

A factory owner purchased a new machine from an assembly company. The machine was made by a machine parts company. The machine parts company supplied it to the assembly company disassembled, and the assembly company assembled it at the factory owner’s plant. As soon as the machine was put into use on the production line, it malfunctioned, ruining the materials which it was processing. The materials had to be thrown away, at great expense to the factory owner. A subsequent inspection revealed an obvious defect in the machine which the assembly company ought to have noticed when assembling it. The assembly company has now gone out of business and was uninsured.
In a claim by the factory owner against the machine parts company to recover the cost of the ruined materials, which of the following best describes the likely outcome?

Because the machine had a defect, the machine parts company has fallen below a reasonable standard of care, and so the factory owner is likely to have a successful claim against the machine parts company to recover the cost of the materials.

Because the factory owner has suffered damage caused by a defect in a product produced by the machine parts company, the factory owner is likely to have a successful claim against the machine parts company to recover the cost of the materials.

Because the machine was supplied for assembly by the assembly company, the factory owner may not be able to establish that it was owed a duty of care by the machine parts company, and so is not likely to have a successful claim against the machine parts company to recover the cost of the materials.

Because the contract for purchase of the machine contained an implied term requiring the goods to be of satisfactory quality, and liability for breach of such term is strict, the factory owner is likely to have a successful claim against the machine parts company to recover the cost of the materials.

Answer 45

(C) The factory owner is not likely to have a successful claim. In the tort of negligence, the manufacturer of a product (the machine parts company) owes a duty of care to the consumer (the factory owner) where the product is put into circulation in the form in which it is intended to reach the consumer with no reasonable expectation of an intermediate examination. This is not satisfied on the facts because the product was supplied for assembly by the assembly company. There was a clear expectation of an intermediate examination. So, the machine parts company is unlikely to owe a duty of care to the factory owner. (A) is not correct. The machine parts company may have fallen below a reasonable standard of care (although the presence of a defect is not necessarily sufficient to establish this). However, failure to exercise reasonable care only gives rise to liability where a duty of care is owed, and this does not appear to be satisfied on the facts, as explained above. (B) is not correct. It may be correct that the factory owner has suffered damage caused by a defect in a product, but this is not sufficient to give rise to a successful claim against the machine parts company. Under the Consumer Protection Act 1987, proof of damage caused by a defect in a product produced by the machine parts company would be sufficient. However, the Act does not apply to damage caused to property used for business (such as the ruined materials). Any claim against the machine parts company would have to be in the tort of negligence and is not likely to be successful, as discussed above. (D) is not correct. It is true that contracts for the sale of goods are regulated by statute and may contain an implied term as to satisfactory quality, with strict liability for breach. However, the machine parts company’s contract for supply of the machine was with the assembly company, not with the factory owner. So, the factory owner cannot rely on any implied terms in such contract.

Question 46

The occupier of a large country estate organises a music festival to raise funds for her favorite charity. The estate has a house with a private walled garden to which no one is permitted access except the occupier. The music festival is held in a very large paddock at a substantial distance away from the house and private garden. Tickets for the music festival are sold to the public and permit entry to the paddock only. A youth wanted to enter the music festival without paying for a ticket. He decided to enter the estate via the private garden so that he could avoid ticket checks on the main gate. He planned to wait there until dark and then walk across the estate to reach the paddock. He successfully entered the private garden but was then injured when he climbed onto a wall which crumbled under his weight.
In an action by the youth against the occupier, which of the following is correct?

The occupier is not likely to be liable to the youth because the youth voluntarily accepted the risk of harm by entering the private garden and climbing on the wall.

The occupier is not likely to be liable to the youth because she did not owe him any duty of care.

Answer 46

(D) The occupier is not likely to be liable to the youth. The youth is not a lawful visitor to the premises; he entered as a trespasser. Persons who are not lawful visitors may be owed a duty of care under the Occupiers’ Liability Act 1984. However, for a duty to arise, all of the following must be satisfied: the occupier was aware of the danger (or ought to have been), the occupier was aware that the trespasser might come into the vicinity of the danger (or ought to have been aware), and the danger was one against which she might reasonably be expected to have offered the trespasser some protection. On the facts, these conditions do not all appear to be satisfied. It is not clear that the occupier knew or ought to have known that the wall was in a dangerous condition. There appears to be no reason why the occupier should expect a trespasser to enter the private garden, since it is nowhere near the festival site. So, on the facts, the occupier is not likely to owe the youth a duty of care. (C) is not correct. For the defence of voluntary assumption of risk to apply, the youth would need to be aware of the danger and voluntarily accept the risk of encountering it. There is nothing on the facts to suggest the youth knew that the wall was in a dangerous condition, so he does not appear to have voluntarily accepted the risk.

Question 47

A woman was injured in an accident caused by the negligence of the defendant. She survived for two months, during which time she suffered severe pain. She also suffered a loss of wages. She then died as a result of her injuries. Her only living relative is a son aged 16. He is in full time education and was completely financially dependent on her. In her will the woman left her entire estate to her son.
In an action against the defendant, which of the following best explains the damages likely to be recovered against him?

The mother’s estate can recover damages for her pain and suffering and loss of wages up to her death, and the son can recover damages for loss of dependency and damages for bereavement.

The mother’s estate can recover damages for her pain and suffering and loss of wages up to her death, but the son cannot recover damages for loss of dependency because he will inherit the damages awarded to his mother’s estate, and he cannot recover damages for bereavement.

The mother’s estate can recover damages for her pain and suffering and loss of wages up to her death, and the son can recover damages for loss of dependency but cannot recover damages for bereavement.

Answer 47

(D) There are two separate claims against the defendant: a claim by the mother’s estate that survives her death and a claim by the son for dependency damages. The claim by the estate should recover damages for the mother’s pain, suffering, and loss of wages up to her death. The claim for the son should recover damages for his loss of dependency. The son cannot recover damages for his bereavement because the statutory provision for bereavement damages does not apply to a child on the death of a parent. (B) is not correct. It correctly recognises the two separate claims for the mother’s estate and for the son, but the son’s claim cannot include damages for bereavement, as explained above

Question 48

The owner of a car issues a claim form in the County Court Money Claims Centre (‘CCMCC’) against a mechanic trading as “Brighton Mechanics” for a faulty repair. The owner estimates that the mechanic did £10,000 worth of damage to the owner’s car. The owner now lives in Manchester and the mechanic is based in Brighton.
Which of the following best describes how the claim will be managed?

The claim will be transferred to the Brighton County Court Hearing Centre following receipt of a defence or admission.

The claim will stay in the CCMCC as it is a low value claim.

The claim will be transferred to the Brighton County Court Hearing Centre post issue.

The claim will be transferred to the Manchester County Court Hearing Centre following receipt of a defence or admission.

Answer 48

(D) The claim will be transferred to the Brighton County Court Hearing Centre following receipt of a defence or admission. Following receipt of a defence or admission, the court will normally transfer a claim to the hearing centre local to the defendant’s home address (if the defendant is an individual) or the claimant’s preferred hearing centre (if the defendant is a company).

Question 49

A car and a lorry collided on the motorway. The car driver received head injuries, fell into a coma, and died three months later. The police successfully prosecute the lorry driver for dangerous driving. The car driver played no part in causing the accident.
The car driver leaves behind a wife and three children, all under the age of 18. His wife obtains a grant of letters of probate for her to bring a claim against the lorry driver as executor of her husband’s estate claiming damages for dependency on behalf of her and the children.

How long does the executor have to bring the claim against the lorry driver?

The executor has three years from the date of the accident to commence proceedings.

The executor has three years from the date of the lorry driver’s conviction to commence proceedings.

The executor has three years from the date of her husband’s death to commence proceedings.

Answer 49

(E) A personal representative can start proceedings on account of the decedent’s death within three years from the date of death or three years from the date the personal representative obtained knowledge of the death, whichever is later. Presumably, those would be the same date here - the date the decedent died from his injuries. (A) is incorrect because three years from the date of the accident would be used for a personal injury claim, and this is a fatal accident claim, which is measured from the date of death.

Question 50

A woman was injured when her car was struck by another car at an intersection. The extent of the woman’s injuries were uncertain and so she delayed filing a claim. The limitation period is to expire on 30 April. On 15 April, the woman’s solicitors issue court proceedings to stop the limitation clock running.
Which of the following best describes the deadline for service of the claim form upon the defendant?

The claimant must serve the claim form before 30 April.

The claimant must serve the claim form within four months of issue, that is, by 15 August.

The claimant must serve the claim form within one month of issue, that is, by 15 May.

The claimant must serve the claim form within 14 days of issue, that is, by 29 April.

Answer 50

D) A claimant must serve an issued claim form within four months of the date of issue, failing which the court will not permit the claimant to continue with the claim. It will be extremely difficult to persuade the court to allow the claim to continue if the claimant fails to serve in time. (A) is incorrect because the claimant need only issue the claim form, not serve it, by the end of the limitation period.