Mock 2 Flashcards
A solicitor is advising a new client about bringing a claim for damages for breach of a building contract. The client asks about funding the claim through a damages based agreement (DBA). She asks her solicitor how they would be paid for the work completed on the case should the claim be successful.
What of the following statements is the best advice to give to the client regarding the DBA?
Option a: The client would have to pay the solicitor’s normal charges together with a success fee of up to 100% of the damages ultimately received.
Option b: The client would have to pay the solicitor an agreed percentage of the damages received up to a maximum of 50%. Credit would be given to the client for costs ordered to be paid by her opponent.
Option c: The client would have to pay the solicitor’s normal charges together with a success fee of up to 50% of the damages ultimately received.
Option d: The client would have to pay to her solicitor an agreed percentage of the damages ultimately received up to a maximum of 35%. Credit would be given to the client for costs ordered to be paid by her opponent.
Option e: The client would have to pay to her solicitor an agreed percentage of the damages received up to a maximum of 50%. The solicitor would also be entitled to retain any costs ordered to be paid by the client’s opponent.
Option B is correct because the DBA must not provide for a payment above an amount which, including VAT, is equal to 50% of the sums ultimately recovered by the client.
Option A is wrong. This option combines elements of a DBA with a conditional fee agreement (CFA). No part of the DBA contingency fee is calculated as a percentage of the solicitor’s normal charges. In addition, the cap on a DBA contingency fee is 50% rather than 100%.
Option C is wrong. This option combines elements of a DBA with a conditional fee agreement (CFA). No part of the DBA contingency fee is calculated as a percentage of the solicitor’s normal charges.
Option D is wrong. The cap for a DBA contingency fee is 50% rather than 35%. The suggested cap is applicable to employment contracts. The claim in this case relates to a building contract.
Option E is wrong. The client should be given credit for any costs ordered to be paid by her opponent.
A client, who runs the local Creepy Crawlies Project, wishes to lead a march tomorrow through the town centre to protest the proposal to extend the Town Hall into the small park that lies beside it. The park is used by schoolchildren to catalogue the small creatures that live there. The protestors intend to occupy the park whilst the Council makes the final decision.
Does the client need to ask permission from the police beforehand?
Option a: The client must ask permission six days prior to the march through the town centre since it is a public place.
Option b: There is no requirement to ask permission of the police before leading a procession in a public place.
Option c: The client does not need to ask permission but cannot march into a public place without giving six days’ notice to the police.
Option d: The client must seek permission to occupy the park because it is used by children for educational purposes.
Option e: The client does not need permission because the march is to stop the destruction of a park which is used by children for educational purposes.
Option B is correct. There is no requirement to ask permission from the police to lead a public procession. The requirement is to give advance notice where reasonably practicable.
Option A is wrong because, although a protest march through the town centre is a public procession, there is no requirement to ask permission of the police six days in advance.
Option C is wrong because the notice period can be curtailed if it is not reasonably practicable to give the full six days’ notice.
Option D is wrong because permission is not required for a meeting in a park which is a public place.
Option E is wrong because, although the facts are correct, police permission is not required for any march.
A solicitor is acting for a company in relation to its purchase of one of its suppliers. The supplier has several offices, factories and warehouses across the UK. Three years ago, the solicitor acted for another client that also considered purchasing the supplier but then decided not to after discovering significant health and safety concerns in the factories, including asbestos. These concerns were shared with the solicitor at the time.
Can the solicitor inform her new client about the asbestos and other health and safety concerns?
Option a: Yes, because she an obligation to act in the best interest of her new client.
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Option b: Yes, because there is no conflict of interest between her new client and her former client.
Option c: Yes, because health and safety concerns override any client confidentiality rules.
Option d: No, because her duty of confidentiality to the former client remains.
Option e: No, because she must act in the best interest of her former client.
Option D is correct. The solicitor’s duty of confidentiality towards her former client remains (see paragraph 6.3 of the Code of Conduct), and therefore the information cannot be disclosed to her new client.
Option A is wrong because while a duty to act in the best interest of her new client does exist, this duty cannot override a duty of confidentiality to a former client.
Options B and C are wrong because a duty of confidentiality remains to the former client, irrespective of whether a conflict does not exist or if health and safety concerns exist (there is nothing in the facts to suggest that disclosure is required by law).
Option E is not the best answer. The principle 7 requirement to act in the best interests of each client is a duty that exists during the course of a retainer. By contrast, the duty of confidentiality exists even after the retainer has come to an end.
A bank made a loan of £2,000,000 to a company last year. The loan is secured by a standard form security debenture, comprising a legal mortgage on the company’s premises, a fixed charge on the fixed assets used to run its business and a floating charge over all its undertaking and assets. The company still owes the bank £1,400,000. The security is duly registered. The company has failed to repay the latest instalment of the loan which is £300,000. The company has told the bank that it does not know when it will be able to pay the bank and that the company’s unsecured creditors are threatening to put it into compulsory liquidation. As the majority creditor of the company, the bank would like to take action which does not bring the company’s operations to an end but will limit the company’s other creditors from being able to do so.
Which of the following statements best describes the action the bank can take as a result of the non-payment?
Option a: Appoint a receiver to sell assets subject to the legal mortgage and fixed charge.
Option b: To force through a Company Voluntary Arrangement on the basis of its voting power as a majority creditor of the company.
Option c: Appoint an administrator over the company and its assets.
Option d: Apply to the court for the company to be wound up, on the ground that the company is unable to pay its debts.
Option e: Enter into a formal arrangement with the company to give the company more time to repay the scheduled loan repayments.
Option C is the correct answer because, as the debenture is in standard form, the bank should be able to appoint an administrator out of court; an enforcement event has arisen and the debenture would meet the requirements of Insolvency Act 1986, Schedule B1 Paragraph 14. One of the aims of administration is to save the company as a going concern and creates a statutory moratorium over the company and its assets during the administration.
Option A is wrong because the appointment of a receiver would mean that the company would no longer have the assets needed to carry on its business, resulting in a winding up, something the bank wishes to avoid.
Option B is wrong because, although a CVA is a mechanism to help rescue a company in financial difficulty and requires the support of secured creditors, secured creditors are not usually allowed to vote on the CVA proposals.
Option D is wrong because the bank does not want the company’s operations brought to an end, which would be the effect of such a compulsory liquidation.
Option E is wrong because a rescheduling of the loan would be a contractual arrangement between the company and the bank which would not bind the company’s other creditors. The arrangement might achieve the bank’s desire not to bring the company’s operations to an end, but would not prevent other creditors from seeking to have the company wound up on the ground that the company is unable to pay its debts.
A client was injured when he helped his sister to remove the packaging from a new washing machine which she had purchased. He cut his hand badly on a sharp splinter of plastic which broke away from the packaging. The washing machine manufacturer has produced evidence to show that there is a known risk of this happening, but no practicable way to check every package. The washing machine manufacturer’s packaging procedures meet the highest industry standards.
Which of the following best describes the client’s legal position in respect of his injury?
Option a: The client cannot claim for his injury because there was no practicable way for the washing machine manufacturer to check every package.
Option b: The client cannot claim for his injury because he did not buy the washing machine.
Option c: The client cannot claim for his injury because he is not a foreseeable victim.
Option d: The client can claim for his injury because the washing machine manufacturer breached its duty of care as this was a known risk and the harm caused was foreseeable and not too remote.
Option e: The client can claim for his injury because the washing machine was defective.
Option E is the best answer because the client will not have a claim in contract or in negligence, but he may have a claim under the Consumer Protection Act 1987. The washing machine (which will include its packaging) is a defective product for the purposes of the CPA 1987, as it is not safe according to what consumers generally are entitled to expect (s.3 CPA 1987).
Option A is wrong because this would only preclude a claim in negligence. Liability under the CPA is strict, so it is irrelevant that the manufacturer had taken all reasonable care.
Option B is wrong because this would only preclude a claim in contract. The CPA allows ‘anyone who has suffered damage caused by a defect in a product’ to make a claim (s.2 CPA 1987).
Option C is wrong because the CPA allows ‘anyone who has suffered damage caused by a defect in a product’ to make a claim. In any event, the client is likely to be a foreseeable victim for the purpose of a claim in negligence.
Option D is wrong because on the facts it seems that the manufacturer has taken all reasonable care, thus precluding a claim in negligence.
A customer attends a restaurant for lunch. She is desperate to find out the recipe for the pudding she ordered and so goes into the restaurant kitchen to ask the chef. As she goes into the kitchen, she passes a large sign on the kitchen door which says “No customers past this point. Staff members should ensure their belongings are stored in the lockers rather than left in the kitchen. The management accepts no liability for any loss or damage”.
On entering the kitchen, she slips on some cooking oil which has been knocked onto the floor, breaks her arm and tears her expensive jacket.
Which of the following statements correctly states the legal position in relation to the customer’s injuries and damage?
Option a: The restaurant will be able to exclude liability for the torn jacket if the notice meets the requirements of reasonableness.
Option b: The restaurant owes the customer the common duty of care and this has been breached as the customer was not reasonably safe
Option c: The warning notice will not prevent the restaurant being in breach of duty as it is not specific and so does not enable the customer to be reasonably safe.
Option d: The restaurant will not be liable to the customer in respect of the torn jacket.
Option e: The restaurant will not be liable to the customer as the warning notice was sufficiently prominent.
Option D is the correct answer because the customer exceeds her permission to be on the premises and so is owed a duty under Occupiers’ Liability Act (OLA) 1984 only. This excludes damage to the trespasser’s property.
Option A is wrong as it is not possible to claim for property damage under the OLA 1984 Act in any event.
Option B is wrong because the customer is not a visitor when she is injured and damages her property. If she were a visitor, the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that she will be reasonably safe. However, under s 1(4) OLA 1984 the duty is to take such care as is reasonable in all the circumstances of the case to see that she does not suffer injury on the premises by reason of the danger concerned.
Option C is wrong because the notice is not warning of any danger and so does not fulfil the requirements of s1(5) OLA 1984 whereby the duty may be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned.
Option E is wrong as the notice is not a warning but a limitation on permission.
In order to promote high quality market standards, a local authority has been given statutory power to grant licences to market traders in their area. The authority formulates a policy that licences will only be granted to traders who have been trading for at least two years. A trader who began a new business three months ago applies for a licence and is refused. The trader is not offered an oral hearing to present his case. The local authority’s decision letter states that the trader’s application has been refused because he has not been trading for two years and because the products the trader wishes to sell are not sustainable.
Which of the following best describes whether the trader has grounds for judicial review?
Option a: The trader has grounds for judicial review on the basis that the local authority has made an error of law.
Option b: The trader has grounds for judicial review on the basis that there has been no fair hearing.
Option c: The trader has grounds for judicial review on the basis of duality of purpose.
Option d: The trader has no grounds for judicial review.
Option e: The trader has grounds for judicial review on the basis of irrationality.
Option C is correct because the local authority has taken into account two purposes, one of which is consistent with the statutory purpose (the two year trading requirement) and one of which is not (the lack of sustainable products).
Option A is wrong because there is no error of law since the local authority has not misinterpreted the statute.
Option B is wrong because, as a mere applicant, there is no requirement to offer the trader an oral hearing.
Option D is wrong because the trader does have grounds under duality of purpose.
Option E is wrong because the decision does not meet the high threshold for irrationality. It would not be considered so unreasonable that no local authority could come to that decision or outrageous in its defiance of logic.
A man entered the UK from Belarus illegally by riding across Europe in the back of a van. He found himself a shared flat to live in and managed to make money through labouring at a building site. He lived like this for many years.
During this time he met a woman and they had two children together. He did not live with the woman and the children, but visited them weekly and gave them some money when he could.
When the children were two and four years old, the immigration authorities caught up with him and started the process of removal. The man was terrified that his removal to Belarus would put him at risk because he had committed treason there many years ago. He said he would be executed.
By reference to rights set out in the European Convention of Human Rights (‘ECHR’), how should this man’s defence be argued?
Option a: The argument should be based on Article 8, the right to a private and family life, because the removal would split up the family.
Option b: The argument should be based on Article 2 because the removal would risk his life and on Article 8, the right to a private and family life, because the removal would split up the family.
Option c: The argument should be based on Article 3 because the removal could also result in inhuman and degrading treatment and on Article 8, the right to a private and family life, because the removal would split up the family.
Option d: The argument should be based on Article 2 because the removal would risk his life.
Option e: The argument should be based on Article 2 because the removal would risk his life and on Article 3 because the removal could also result in inhuman and degrading treatment.
Option B is correct. Articles 2 (the right to life) and 8 (the right to a private and family life) are both appropriate on the facts.
Options A and D are not the best answers, because whilst both are appropriate on the facts, they do not include all lines of argument available in this case.
Options C and E are wrong because there is no evidence of inhuman and degrading treatment.
A client operates an electrical installation business supplying and fitting electrical systems for new build residential housing. The client completed work for a house builder last week pursuant to a supply and fit contract. The builder is unhappy with the work. The builder has explained that the electrical wiring supplied by the client does not satisfy UK safety standards and has caused damage to plastic trunking which will cost £25,000 to repair. The client has admitted that the wiring was substandard (and supplied in breach of contract), but has referred the builder to its standard conditions of contract which state:
“The maximum liability which [the client] assumes for any loss of profit caused by the breach of any express or implied term of this agreement is limited to £10,000.”
Which of the following statements provides the best advice for the client about the clause?
A: The clause will be enforceable and the client will only have to pay a maximum of £10,000 to the builder.
Option b: The clause will be unenforceable as statute provides that contracts of this nature cannot exclude or restrict liability for breach of contract.
Option c: The clause will be wholly unenforceable as it is unclear and ambiguous.
Option d: The clause will not be effective in limiting the client’s liability for the physical damage caused.
Option e: The clause is arguably ambiguous as to the type of loss in respect of which the client’s liability is limited and will therefore be construed against the builder who is making the claim for breach of contract.
Option D is the best answer. The clause purports to limit liability should the builder suffer any loss of profit. However, the builder’s claim will not be for loss of profit, but will be for the cost of curing the physical damage caused to the plastic trunking. The wording of the clause therefore does not limit liability for the type of loss that has been sustained, and the builder may therefore be able to recover damages in excess of the clause.
Option A is wrong. The clause may be enforceable but only in respect of claims for loss of profit. As the builder will be seeking damages in respect of property damage, the clause will not limit the client’s liability to £10,000.
Option B is wrong. This is a business-to-business contract and is therefore governed by the Unfair Contract Terms Act 1977. The limitation clause will be valid if reasonable. (This should be contrasted with the position set out in the Consumer Rights Act 2015 under which liability for breach cannot be excluded or limited.)
Option C is wrong. The clause is unlikely to be treated by the courts as being ambiguous. Even if this were the case, this would not render the clause wholly unenforceable, but would rather result in the court interpreting the extent and applicability of the clause against the client seeking to rely on it. Option E therefore is also wrong – if the clause is ambiguous, that ambiguity will be resolved against the client, not against the builder.
A shareholder owns shares in a private company limited by shares. The company has Model Articles.
The shareholder wants to sell his shares to a purchaser. The company has recently released its annual accounts and it has performed well in the last financial year. The shareholder paid £2.70 each for 10,000 shares two years ago. The shareholder now expects that the purchaser will pay £3.44 for each share.
The company is looking to raise funds for its new factory.
Which of the following options best describes the likely role of the company in this process?
Option a: Once the transaction completes, the company will be able to use the £7,400 towards its new factory.
Option b: When allotting these shares to the purchaser, the directors of the company must check for constitutional restrictions, the directors’ authority to allot and pre-emption rights before they allot the shares.
Option c: The directors of the company will register the transfer of shares unless they exercise their discretion not to. If they decide not to, they must inform the transferee within two months.
Option d: The company’s directors must decide carefully if the company wishes to use the money to buy back the shares or to invest in the new factory. The directors must consider their statutory duties.
Option e: The company cannot buy back the shares unless there are profits available for the purpose.
Option C is correct and conforms to the duties set out for transfer of shares (s771 of the Companies Act 2006). A company must register the transfer of shares as soon as practicable and, as a long stop, within two months of the transfer being lodged with the company. However, the board of directors have the discretion to refuse to register the transfer of shares.
Option A, D and E are wrong because this is a transfer of shares not a buyback or an allotment. The company will not receive or spend any money themselves. The money will move from the purchaser to the shareholder.
Option B is wrong because these rules relate to an allotment of shares and this is a transfer.
Two weeks ago, a woman’s business lender successfully petitioned for her bankruptcy. The woman and her daughter have expensive tastes which led to substantial debt.
The woman wants advice about which of her assets will vest in the trustee in bankruptcy and the effect of bankruptcy on her wish to set up another business imminently.
She gives you the following information:
her trustee in bankruptcy has already taken control of her car rental business assets (mainly leased) and is now looking to take possession of her other assets including her house, her clothing and an antique silver tea set she recently inherited.
in addition to her car rental business she is also a partner in a wedding planner business, which provides her with a reasonable income. She confirms there is no partnership agreement.
to boost her income she intends to set up another business for which she will need a small loan of £400. In passing she says she will use a new trade name so that her customers would be unaware of her bankruptcy.
Option A:The woman will be entitled to obtain the loan from a willing lender.
Option b: The woman will have a continuing right of occupation in her main residence.
Option c: The woman is free to use a new trading name for her start-up without restriction.
Option d: The woman will continue to receive her partnership income.
Option e: The woman is entitled to retain her clothing and the antique silver tea set which she recently inherited.
Option A is correct – an undischarged bankrupt can obtain a loan of less than £500 (s306 Insolvency Act 1986).
Option B is wrong because her main residence will vest in the Trustee in Bankruptcy after one year of the bankruptcy s355A IA 1986.
Option C is wrong. If a new trading name is used she would need to disclose the bankruptcy; s360 IA 1986.
Option D is wrong. The partnership will automatically dissolve under s33 PA 1890.
Option E is wrong. She will be able to keep assets needed for day-to-day living, so probably the clothes, but the tea set is likely to be of high value and the trustee in bankruptcy could sell it and replace it with a cheaper alternative.
A client wishes to challenge the length of the prison sentence given to his brother who has been convicted of terrorism. He alleges that the power given to the Home Secretary to determine the length of a prison sentence of a convicted terrorist is incompatible with his Convention rights.
What of the following best describes the response of the court which hears the case?
Option a: The court is a public authority and must make its decision in a way that is compatible with Convention rights. It will issue a declaration of incompatibility with the brother’s Convention rights.
Option b: The court is a public authority and must make its decision in a way that is compatible with Convention rights. It will attempt to interpret the statute compatibly with the brother’s Convention rights.
Option c: The court is a public authority and must make its decision in a way that is compatible with Convention rights. The court will order the Home Secretary to amend the statute using applicable remedial powers.
Option d: The court is a public authority and must make its decision in a way that is compatible with Convention rights. The court will make a declaration that the Home Secretary’s power is incompatible with the rule of law.
Option e: The court is a public authority and must make its decision in a way that is compatible with Convention rights. However, the court would not agree to hear this case because the client was not the victim of the Home Secretary’s decision.
Option E is the best description of how the Court will act in these circumstances. Under s.7 HRA, a person who wishes to plead a breach of a right must be the victim of that breach. Here, it was the client’s brother who was the victim. If the brother were to challenge the decision, then it is likely that the court would issue a declaration of incompatibility with the brother’s article 6 rights.
Options A and B are not the best description here because the client is not the victim as required. (If the brother were to challenge the decision, then it is likely that the court would issue a declaration of incompatibility with his article 6 right.)
Option C is not the best description here because the client is not the victim as required. Furthermore, if the brother were to challenge the decision, the court has no authority to order the Home Secretary to amend the statute using the remedial power in s.10 of the Human Rights Act.
Option D is not the best description here because the client is not the victim as required. Furthermore, although the court might agree that the Home Secretary’s power is incompatible with the rule of law, it cannot make such a declaration. It can only declare compatibility with a Convention right.
A supplier contracts to sell to a buyer for £15,000 a consignment of goods for onward sale to the buyer’s customers. On the afternoon of the day before the agreed delivery date, the supplier contacts the buyer and, on the basis that economic conditions have deteriorated since the contract was made, demands a further £2,500 before it will supply the goods. The buyer threatens to call in its lawyers, but agrees to the increase in price. The supplier delivered the goods, the buyer fulfilled its contracts with its customers and the supplier is now demanding payment of the full £17,500
Does the buyer have an arguable defence of economic duress to the supplier’s claim for payment of the extra £2,500?
Option a: Yes, because all necessary elements of the defence are likely to be satisfied operating to render the original contract void so that the supplier cannot recover the £17,500.
Option b: No, because the buyer could have sought and would have obtained an interim mandatory injunction to compel the supplier to deliver the goods under the original contract.
Option c: No, because the agreement to pay the increased price was supported by consideration.
Option d: Yes, because all necessary elements of the defence are likely to be satisfied operating to render the agreement to pay the increased price voidable even if supported by consideration.
Option e: No, because the buyer’s inability to return the contract goods to the supplier would bar rescission for economic duress.
Option D is correct. The requirements for economic duress appear to be satisfied – a threat by the supplier to break the contract; no practical alternative for the buyer; protest by the buyer at the time; and the threat clearly induced the buyer to agree to pay the extra (Carillion Construction Ltd. v Felix).
Option A is wrong because the original contract is unaffected by any finding of duress, so the initially agreed £15,000 remains payable.
Option B is wrong because, even if an application was feasible in the time available, the grant of an injunction is a discretionary remedy and there is no guarantee that it would have been granted (Adam Opel v Mitras).
Option C is wrong because, even if there is consideration for the agreement to pay the extra, the agreement is voidable for economic duress.
Option E is wrong because the inability to return the goods does not relate to the agreement to pay the extra, but rather to the original supply contract. The remedy of rescission is relevant only to the later agreement to pay the extra sum.
A client runs a small cheese making company in the UK. Their cheese contains 0.2% calcium chloride from milk. A food inspector serves the client with an Ingredient Declaration Rectification Order (fictitious) under the Food Inspectorate Act 2017 (fictitious). The Act states that no cheese should be made with more than 0.18% calcium chloride. The client is ordered to change their recipe.
The client has found the EU Dairy Produce Regulation of 2019 (‘the EU 2019 Regulation’) (fictitious) which states that cheeses are considered safe if they contain anything up to 0.25% calcium chloride from milk. The EU 2019 Regulation has been retained. However, the EU amended the EU 2019 Regulation in 2023 so it now contains identical provisions to the UK Act.
Which of the following best describes whether the client will be able to defend their cheese recipe?
Option a: The client will be able to defend their recipe. The EU 2019 Regulation is retained EU law, the UK statute is pre-IP completion day and so the EU 2019 Regulation remains supreme.
Option b: The client will not be able to defend their recipe. The EU 2019 Regulation is no longer binding in the UK since IP completion day.
Option c: The client will not be able to defend their recipe due to the amendments made by the EU to the EU 2019 Regulation in 2023.
Option d: The client will not be able to defend their recipe. The EU 2019 Regulation is assimilated direct legislation over which all domestic enactments have priority.
Option e: The client will be able to defend their recipe. 0.18% calcium chloride is so close to 0.2% that enforcing the limit strictly would breach retained general principles of EU law.
Option D is correct. The Retained EU Law (Revocation and Reform) Act (‘REULA 2023’) ended the principle of supremacy of EU law and renamed retained EU law assimilated law, and EU regulations which had been retained as direct EU legislation because assimilated direct legislation. Assimilated direct legislation now takes effect subject to the provisions of any domestic enactment, so the UK Act now has priority even though it predates the EU 2019 Regulation.
Option A is wrong as it reflects the position that existed between IP completion day and the end of December 2023. During that period, EU law which had been retained by the European Union (Withdrawal) Act 2018 remained supreme over UK laws which had been created before IP completion day. However, REULA 2023 ended the principle of supremacy of EU law.
Option B is wrong because it disregards the fact that the EU 2019 Regulation has been retained, initially as retained EU law and now assimilated law.
Option C is wrong because the EU’s amendments to the EU 2019 Regulation do not affect the version that was retained by the UK as they were made after IP completion day. The UK version of the EU 2019 Regulation retains the original 0.25% limit for calcium chloride, although the UK Act takes precedence over it.
Option E is wrong, because the fact that the difference in calcium chloride values is slight does not give the client the ability to defend its cheese recipe. Even if there were a relevant general principle of EU law, REULA 2023 removed general principles of EU law from domestic law so they do not form part of assimilated law. UK law is supreme in this area, and the calcium chloride value is clearly above the maximum allowed by UK law.
A pedestrian was injured in a collision when a delivery driver mounted the kerb. The delivery driver was on his way into work. In order to avoid a traffic jam, the driver was taking a different route into work. He was answering a phone call and had taken his eyes off the road when the accident happened. The driver’s employer regularly instructs delivery drivers that they should drive carefully at all times.
Which of the following best describes the liability of the employer?
Option a: The employer will be vicariously liable for the employee’s tort because the employee was furthering his employer’s business when the accident occurred.
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Option b: The employer will be vicariously liable for the employee’s tort because the employee was on his way into work when the accident happened.
Option c: The employer will not be vicariously liable because the accident happened while the employee had deviated from his usual route into work.
Option d: The employer will be not liable as it had instructed the employee to drive carefully and the employee did not.
Option e: The employer will not be vicariously liable as the employee was outside the scope of his employment when the accident occurred
Option E is correct. Most people will not be within the scope of their employment when travelling to work.
Option A is wrong. Acts done to ‘further the employer’s business’ is not the test for vicarious liability – the test is whether the employee committed a tort whilst in the course of his employment. In any event, the employee will not be furthering the employer’s business simply by travelling to the workplace.
Option B is wrong. The journey to the workplace is ordinarily not part of the scope of employment.
Option C is not the best answer as it is irrelevant. Whilst it is true that an employer might escape liability if an employee commits a tort while deviating from the route authorised by the employer (ie where the employee is on a ‘frolic of his own’), in this case the employee was driving into work and therefore would not have been acting within the course of his employment even if he had travelled into work along his usual route.
Option D is not the best answer because such a prohibition is to the manner rather than the scope (or period) of the employment and so would not alter the fact that the employee was not acting within the course (or period) of his employment when the accident occurred.
