Remoteness, defences and remedies

Question 1

What is the test for remoteness?

Answer 1

the type of damage suffered must have been reasonably foreseeable at the time of the breach

Question 2

What happens if the specified damage was not reasonably foreseeable?

Answer 2

f the specific damage suffered was not reasonably foreseeable, then the claimant will still succeed if they can show that damage of the same ‘type’ was foreseeable: ‘type’ can be narrowly or broadly construed (mostly broadly).

Once it is established that the ‘type’ of damage was foreseeable, then:
* The claimant will succeed even if the precise way the damage occurred was not reasonably foreseeable.
* The claimant will succeed even if the full extent of the damage was not reasonably foreseeable.
* The defendant must take the claimant as they find them.

Question 3

Which one of the following is a correct summary of the thin skull rule from Smith v Leech Brain?

Answer 3

The defendant must take their victim as they find them, regardless of any pre-existing illness or lack of money.

Question 4

Larry, a model, suffers facial injuries as a result of falling from a theme park ride. The theme park had negligently failed to install appropriate safety measures. Larry is taken to hospital where a surgeon operates on his face. Larry has an allergic reaction to the anaesthetic and suffers additional nerve damage. Larry is unable to accept any modelling work for six months. Which of the following is most accurate in relation to remoteness?

Larry’s personal injury and consequential economic loss were reasonably foreseeable consequences of the breach but he has acted unreasonably so the losses will be too remote.

Larry’s consequential economic loss was a reasonably foreseeable consequence of the breach but the personal injury was not.

Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach.

Larry’s personal injury was a reasonably foreseeable consequence of the breach but the consequential economic loss was not.

Neither Larry’s personal injury nor the consequential economic loss were reasonably foreseeable consequences of the breach.

Answer 4

Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach.

Question 5

What are the two principal remedies that a court can award in a successful tort action?

Answer 5

The two principal remedies that a court can award in a successful tort action are damages and injunctions.

Question 6

What is the legal test for contributory negligence?

Answer 6

The legal test for contributory negligence is that the claimant failed to take reasonable steps for their own safety and this failure contributed to the claimant’s damage.

Question 7

What is the legal test for illegality in the context of a claim?

Answer 7

The legal test for illegality involves considering the underlying purpose of the prohibition transgressed, other relevant public policy, and whether denying the claim would be a proportionate response to the illegality. These factors were established in Patel v Mirza [2016] UKSC 42 and should be applied to determine whether the defence of illegality should be allowed.

THERE MUST BE A DIRECT LINK BETWEEN THE ILLEGAL AND ACT AND TORT

Question 8

What is the defence of consent?

Answer 8

The defence of consent, also known as volenti non fit injuria, is applicable in cases where the claimant has consented to the risks involved and cannot complain of the consequential damage. To succeed in this defence, the defendant must show that the claimant had the capacity to give valid consent, had full knowledge of the nature and extent of the risks, agreed to the risk of injury, and agreed voluntarily.

Question 9

What is the purpose of damages in the law of tort?

Answer 9

The aim of damages in the law of tort is to put the claimant in the position they would have been in but for the defendant’s tortious act, as far as this is possible with an award of money. Damages are designed to be compensatory and seek to restore the claimant to the position before the tort happened.

Question 10

What is the effect of contributory negligence on a defendant’s liability?

Answer 10

A finding of contributory negligence reduces the liability of a defendant in relation to the harm their breach of duty has caused the claimant. The claimant’s damages are reduced by a percentage determined by the court, taking into account the claimant’s share in the responsibility for the damage.

Question 11

What are some examples of claimants failing to take reasonable care for their own safety?

Answer 11

Examples include a passenger knowing the driver had consumed excessive alcohol, a person getting stuck in a toilet cubicle and attempting to escape through an unstable toilet roll holder, and a person failing to check for oncoming traffic before crossing the road.

Question 12

What are the requirements for the defence of consent?

Answer 12

The first requirement for the defence of consent is that the defendant must prove that the claimant had the mental capacity to consent to the risks involved. This requirement is usually straightforward unless the claimant is a young child or lacks the capacity to understand the risks.

The second requirement for the defence of consent is that the claimant must have had full knowledge of the nature and extent of the risks that materialized. General knowledge is not sufficient, and the question is whether the particular claimant knew the specific risks involved.

The third requirement for the defence of consent is that the claimant agreed to run the risk of injury due to the defendant’s negligence. This agreement can be express or implied, but knowledge of the risk alone is not sufficient to establish consent.

The fourth requirement for the defence of consent is that the claimant agreed voluntarily to run the risk of injury due to the defendant’s negligence. The defence cannot succeed unless the claimant acted voluntarily, free of any constraint. This requirement is particularly relevant in considering rescue cases.

Question 13

What are the three necessary conditions identified in Patel v Mirza for determining whether illegality should apply?

Answer 13

The three necessary conditions identified in Patel v Mirza are: (a) considering the underlying purpose of the prohibition transgressed and whether that purpose will be enhanced by denial of the claim, (b) considering other relevant public policy which may be rendered ineffective or less effective by denial of the claim, and (c) assessing whether denying the claim would be a proportionate response to the illegality.

Question 14

What is the difference between general damages and special damages?

Answer 14

General damages cover future financial losses that cannot be specifically proven, as well as non-quantifiable losses such as compensation for physical injury. Special damages, on the other hand, cover specifically provable and quantifiable financial losses at the time of trial.

Question 15

Under what circumstances are rescuers protected from contributory negligence?

Answer 15

Rescuers are generally protected from contributory negligence. However, if the rescuer negligently helped to create the emergency in the first place, they may not be protected. The nature of the duty and the specific circumstances are also considered.

Question 16

How does the court determine the reduction in damages for contributory negligence?

Answer 16

The court has discretion in determining the reduction in damages for contributory negligence. The claimant’s degree of culpability is expressed in percentage terms, and an equivalent percentage of the damages is deducted from the claimant’s award. The court considers what is just and equitable in all the circumstances.

Question 17

What is the purpose of the ‘pain, suffering, and loss of amenity’ (PSLA) award in a tort claim?

Answer 17

The ‘pain, suffering, and loss of amenity’ award in a tort claim aims to compensate the claimant for the effect of the injury on their lifestyle. It covers both the physical pain and suffering experienced and the impact on activities the claimant can no longer do, such as swimming or walking.

Question 18

What is the legal test for the defence of necessity?

Answer 18

The two steps involved in the legal test for the defence of necessity are: (1) determining whether the defendant was acting in an emergency to prevent harm to the claimant, a third party, and/or themselves, and (2) assessing whether the defendant was not at fault in causing the emergency.

Question 19

What is the purpose of the defence of illegality in tort?

Answer 19

It prevents a claimant from seeking compensation for losses suffered while engaged in a criminal activity or intertwined with a crime.

Question 20

How are future losses calculated in a tort claim?

Answer 20

For one-off future expenses, a lump sum will be given. However, for continuing losses like future loss of earnings or recurring medical treatment expenses, the court uses the multiplier/multiplicand approach. This approach takes the annual expense and multiplies it by the number of years the loss will continue to be suffered.

Question 21

What deductions can be made from the damages awarded in a tort claim?

Answer 21

Deductions from damages may include any state benefits received by the claimant as a result of their injury, contractual sick pay, redundancy payment if the redundancy resulted from the injury, and any finding of contributory negligence. Insurance pay-outs, ill-health pensions, and sums received by way of gifts or charity are not deducted.

Question 22

What happens when a claimant dies as a result of a tort?

Answer 22

When a claimant dies as a result of a tort, their estate can bring a claim for any losses suffered by the deceased up to the date of death. The Fatal Accidents Act 1976 allows certain family members to claim compensation if they depended on the deceased. They may also be able to claim a bereavement award and/or funeral expenses.

Question 23

What are some statutory limitations on the defence of consent?

Answer 23

Under the Road Traffic Act 1988, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result. The Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 also limit the use of consent as a defence in certain situations.

Question 24

What is the legal test for determining contributory negligence?

Answer 24

(a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage.

Question 25

What are some statutory limitations on the defence of consent in relation to contracts?

Answer 25

Under the Unfair Contract Terms Act 1977 and Consumer Rights Act 2015, being aware of a term limiting or excluding liability for certain losses does not mean that the party consents to those risks or losses. These acts provide that such terms may be subject to a test of reasonableness and may not apply when the claimant is a consumer.

Question 26

Where the defence of contributory negligence has been established…

Answer 26

…damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability

Question 27

Which of the following is correct in relation to step one of the legal test for necessity, that the defendant was acting in an emergency to prevent death or serious injury?

The test is objective; a reasonable person would have believed at the time of the negligence that it was necessary to act to prevent death or serious injury.

The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury.

The test is objective; a reasonable person would have believed by the time of the trial that it was necessary to act to prevent death or serious injury.

The test is subjective; that defendant must believe by the time of the trial that it was necessary to act to prevent death or serious injury.

Answer 27

The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury.

Question 28

A captain of a ship negligently hits a large rock which damages the ship. As a result, to prevent the ship from sinking, the captain has to discharge some oil into the sea. The oil damages the claimant’s shoreline.

Which of the following is most accurate in relation to whether the captain can rely on the defence of necessity in a negligence claim brought by the claimant?

The defence of necessity will not succeed. The captain was not acting in an emergency when discharging the oil.

The defence of necessity will succeed. The captain was acting in an emergency when discharging the oil.

The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence.

The defence of necessity will succeed. Whenever a defendant acts to save life, this will act as complete defence to any negligence claim.

Answer 28

The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence.

n order to succeed with the defence of necessity, the defendant must prove that they:
Were acting in an emergency to prevent harm to the claimant, a third party and/or the defendant themselves; and
Were not at fault in causing the emergency.
Whilst the captain can satisfy step 1, they cannot satisfy step 2 – the captain’s acts caused the emergency.

Question 29

A man broke his leg when he was negligently hit by a car. This injury would normally result in a two month absence from work. However, due to a pre-existing condition that he has, his leg does not fully recover and he is also left with a permanent limp.

Which of the following statements best describes what the man can claim from the negligent driver?

The man can claim for personal injury for the broken leg and consequential economic loss for his lost earnings from not being able to work for two months.

The man can claim for personal injury for the broken leg and permanent limp, together with consequential economic loss for his lost earnings from not being able to work for two months.

The man can claim for personal injury for the broken leg and permanent limp.

The man can claim for his lost earnings from not being able to work for two months.

The man can claim for personal injury for the broken leg.

Answer 29

The man can claim for personal injury for the broken leg and permanent limp, together with consequential economic loss for his lost earnings from not being able to work for two months.

Correct: This answer applies the principle that the tortfeasor must take the Claimant as they find them as set out in Smith v Leech Brain [1962] 2 QB 405. Consequently, the driver is liable in relation to both the broken leg and the permanent limp. It also correctly identifies the economic loss as consequential economic loss given that the loss (i.e. the loss of earnings) is as a result of a personal injury (i.e. the broken leg).
While the other answer options might sound plausible, they are each incorrect.
The explanation above should explain why the other options are incorrect, namely the other options do not allow recovery for all the losses suffered by the man.

Question 30

A decorator negligently left an oil lamp burning in a woman’s house. The woman was unaware of the lamp and bumped into it by accident. The lamp fell and then exploded, causing the woman to suffer severe burns.

Which of the following statements best describes what the woman can claim from the decorator in negligence?

The woman can claim for minor burns as damage caused by a fire was reasonably foreseeable but not from an explosion.

The woman can claim for personal injury for the severe burns as damage caused by fire was reasonably foreseeable.

The woman cannot claim for anything as she can only claim for losses that are a direct result of the decorator’s breach.

The woman cannot claim for anything as burns from an explosion were not reasonably foreseeable.

The woman can claim for personal injury for the severe burns as this loss was a direct result of the decorator’s breach.

Answer 30

The woman can claim for personal injury for the severe burns as damage caused by fire was reasonably foreseeable.

Correct: This answer applies the principle that once it has been established that the kind of damage is reasonably foreseeable, there is no need for it to be reasonable for the Defendant to foresee the exact circumstances leading up to the damage, as set out in Hughes v Lord Advocate [1963] AC 837.
While the other options might sound plausible, they are each incorrect.
The explanation above should explain why the other options are incorrect, i.e. they do not apply the legal principle from Hughes v Lord Advocate [1963] AC 837. Two of the options refer to ‘direct result’ of the breach. This is the historic test for remoteness which has been replaced with reasonable foreseeability (Wagon Mound No 1 [1961] AC 388).

Question 31

A teenage boy is cycling on a narrow country road at a fast pace as he is training for a race. A woman is walking along the road with her dog, which is not on the lead. The dog barks furiously at the cyclist and jumps in front of the bicycle, causing the boy to fall and suffer a broken shoulder.

Which of the following represents the best advice to the woman in relation to defences to a negligence claim by the boy?

The defence of contributory negligence will apply as the boy’s actions have contributed to the harm he has suffered.

The defence of volenti will apply as the boy has chosen to run an obvious and serious risk of harm in cycling at a fast pace on a country lane.

There will be no defence available to the woman as the boy has done nothing wrong.

The defences of volenti and contributory negligence will apply as the obvious and serious risk of harm in cycling at a fast pace has contributed to the harm suffered by the boy.

The defence of contributory negligence will apply to negate any liability of the woman.

Answer 31

The defence of contributory negligence will apply as the boy’s actions have contributed to the harm he has suffered.

Correct. Contributory negligence would probably be argued successfully here as the facts appear to satisfy the two-stage test from Jones v Livox Quarries: (1) the boy has failed to take reasonable care for his own safety by cycling at a fast pace on a narrow country road, and (2) this has contributed, at least to some extent, to the injuries he has suffered. If the court were satisfied that this test was satisfied, they would have the power to reduce the boy’s damages by a ‘just and equitable’ amount: s.1 Law Reform (Contributory Negligence) Act 1945
While the other options might sound plausible, they are each incorrect.
The given facts are unlikely to satisfy the four-stage test for volenti. Even if the boy has capacity to consent and is taken to have understood that there is a risk of accident when cycling fast on a narrow country road, he will not be found to have consented to the negligence of the woman in failing to control her dog on a public road, ie. the nature and extent of the risk has not been understood. Furthermore, although he has voluntarily run the risk of injury, the risk itself is unlikely to be regarded as such an obvious and serious risk as to satisfy the threshold set for implied agreement to harm: see Morris v Murray.
The speed at which the boy is cycling, given that this is a narrow country road, may be found to show a lack of reasonable care for his own safety, which has contributed to the harm he has suffered. It is not therefore correct to say that the boy has done nothing wrong.
The defence of contributory negligence is a partial defence which operates to reduce the level of damages payable by a defendant but does not negate liability.

Question 32

A pedestrian is negligently knocked over by a cyclist who was travelling very fast. The pedestrian suffers a serious head injury and is in hospital for two weeks, during which time they cannot work, but they receive contractual sick pay from their employer. They die from their head injuries two weeks after the accident.

Which of the following statements is most accurate in relation to damages that the pedestrian’s estate might receive if successful in a claim for negligence against the cyclist?

The pedestrian’s estate is likely to be awarded compensatory damages, divided into special and general damages. The contractual sick pay will not be deducted from any special damages awarded. The general damages will include a PSLA award.

The pedestrian’s estate is likely to be awarded special damages only. The contractual sick pay will be deducted from any special damages awarded.

The pedestrian’s estate is likely to be awarded compensatory damages, divided into special and general damages. The contractual sick pay will be deducted from any special damages awarded. The general damages will include a PSLA award.

The pedestrian’s estate is likely to be awarded compensatory damages, divided into special and general damages. The contractual sick pay will not be deducted from any special damages awarded. The general damages will not include a PSLA award.

The pedestrian’s estate is likely to be awarded compensatory damages, divided into special and general damages. The contractual sick pay will be deducted from any special damages awarded. The general damages will not include a PSLA award.

Answer 32

The pedestrian’s estate is likely to be awarded compensatory damages, divided into special and general damages. The contractual sick pay will be deducted from any special damages awarded. The general damages will include a PSLA award.

Correct. Compensatory damages are by far the most common type of damages awarded in the tort of negligence. The aim of such damages is to put the claimant in the position they would have been in but for the defendant’s tortious act, as far as this is possible with an award of money. Even though the pedestrian has died, their estate may bring a claim for any losses suffered by the pedestrian as a result of the accident up to the date of death. This is calculated on the same basis as a normal personal injury award, but no claims can be made for any losses that might have arisen after the date of her death (s.1(2)(a) Law Reform (Miscellaneous Provisions) Act 1934).
The pedestrian’s estate will therefore be entitled to special damages which cover specifically provabale and quantifiable financial losses, for example, loss of earnings. However, deductions will be made for any contractual sick pay the pedestrian received before they died. This is to avoid the claimant receiving two sums of money for the same reason.
The estate will also be entitled to general damages which will include a sum for the PSLA award (the pain, suffering and loss of amenity award). This award attempts to provide some financial compensation for the effect of the injury. The court would therefore assess the PSLA suffered by the pedestrian from the time of the accident until the date of death.
While the other options might sound plausible, they are each incorrect.
The explanation given above for why this answer is correct should explain why the other options are incorrect.

Question 33

A professional golfer is being driven to a golf tournament by a friend. The golfer knows that their friend only passed their driving test one week ago and so is an inexperienced driver. On the way to the tournament the golfer and driver are in a car crash caused by the driver’s negligent driving. The golfer breaks their arm in the crash. As a result of this injury the golfer is unable to golf for several months.

Which one of the following correctly describes the forms of loss that the golfer would be able to claim for?

Pure economic loss.

Personal injury and property damage.

Personal injury only.

Personal injury and consequential economic loss.

Personal injury and pure economic loss.

Answer 33

Personal injury and consequential economic loss.

Correct. The golfer has suffered personal injury (a broken arm) and consequential economic loss (unable to play golf as a result if their injuries).

Question 34

A contractor, working on the Council’s electricity cables, accidentally cuts through one of the cables. As a result, the electricity supply to a nearby bakery is cut off for 24 hours. The industrial oven in the bakery is no longer working. The batch of 100 cakes in the oven have failed to rise and are ruined. The ovens ordinarily produce 500 cakes per day. The bakery would like to sue the contractors in negligence.

Which of the following statements is the best advice to the bakery as to what losses are claimable?

The bakery will be able to recover the cost of the ruined batch of cakes in the oven but they will not recover for the lost profit from these cakes or the 400 additional cakes they would have made that day.

The bakery will be able to recover the cost of the ruined batch of cakes in the oven, the lost profit from those cakes and the profit from the additional 400 cakes they would have made that day.

The bakery will be able to recover the cost of the ruined batch of cakes in the oven and the profit from the additional 400 cakes they would have made that day but they will not recover for the loss of profit on the ruined cakes in the oven.

The bakery will be able to recover the cost of the ruined batch of cakes in the oven and the lost profit from selling that batch. They will not be able to recover the profit for the other 400 cakes they would have made that day.

The bakery will be able to recover the lost profit from the ruined batch of cakes in the oven and the other 400 cakes that would have been made that day but they will not recover the costs of the ruined batch of 100 cakes in the oven.

Answer 34

The bakery will be able to recover the cost of the ruined batch of cakes in the oven and the lost profit from selling that batch. They will not be able to recover the profit for the other 400 cakes they would have made that day.

This is correct. Pursuant to Spartan Steel v Martin, the bakery will be able to recover the cost of the batch of 100 cakes in the oven (property damage), the lost profits from that batch (consequential economic loss). They will not be able to recover for the lost profits on the 400 additional cakes they would have made that day but for the interruption to the electricity supply. This loss constitutes pure economic loss on the basis that the cables are not owned by the bakery and it is therefore not claimable in tort law.

Question 35

At the gym one weekend, a wealthy individual who has enjoyed investing in the stock market for many years bumps into a friend who is a stockbroker. The stockbroker gives the wealthy individual the name of a company whose share price they are sure is about to rise sharply and suggests that the individual might like to invest in the company. The wealthy individual invests immediately but the company goes bankrupt the following week and they lose £50,000.

Which of the following is the best explanation of whether or not the wealthy individual may be able to successfully sue their friend for their negligent advice?

The wealthy individual may be unsuccessful because it was unreasonable for them to rely on the stockbroker’s advice as it was given for free.

The wealthy individual may be unsuccessful because it was unreasonable for them to rely on their friend’s advice; the wealthy individual was an experienced investor on the stock market.

The wealthy individual may be unsuccessful because it was unreasonable for them to rely on the stockbroker’s advice as it was given in an informal setting,

The wealthy individual may be successful because there is a special relationship between themselves and the stockbroker, as the stockbroker is their friend.

The wealthy individual may be successful because it was reasonable for them to rely on the stockbroker’s advice given the friend was a stockbroker.

Answer 35

The wealthy individual may be unsuccessful because it was unreasonable for them to rely on their friend’s advice; the wealthy individual was an experienced investor on the stock market.

Correct. For the stockbroker to owe the individual a duty of care the courts might consider the reasonable reliance test; Hedley Byrne v Heller (1964) AC 465. The individual must have relied on the stockbroker’s advice, which they did. The stockbroker must have known that they would rely on their advice, which they did. However, it must have been reasonable for the individual to rely on the stockbroker’s advice, which it arguably was not, given their experience in investing in the stock market; Stevenson v Nationwide Building Society (1984) 272 EG 663.

Question 36

PSLA award?

Answer 36

the pain, suffering and loss of amenity award

This award attemps to provide some financial compensation for the effect of the injury.

Question 37

General rule on pure economic loss?

Answer 37

As a general rule, a defendant does not owe any duty of care to a claimant not to cause
pure economic loss.

Question 38

What is classified as pure economic loss?

Answer 38

The types of loss that are classified as pure economic loss and are
not recoverable are:
∘economic loss caused by acquiring a defective item of property
∘economic loss unconnected to personal injury to the claimant or physical damage to
the claimant’s property
∘economic loss caused by damage to the property of a third party
∘economic loss where there is no physical damage: actions
∘economic loss where there is no physical damage: statements

Question 39

When will rescuers be considered to have not consented to injury?

Answer 39

Rescuers will not be considered to have consented to the risk of injury if:
*
they were acting to rescue persons or property endangered by the defendant’s
negligence; and
*
they were acting under a compelling legal, social or moral duty; and
*
their conduct in all the circumstances was reasonable and a natural and probable
consequence of the defendant’s negligence.

Question 40

Question 1
A solicitor acts for a client who is being sued in negligence. The solicitor’s instructions are
that the client was giving the claimant (the 8- year- old son of the client’s friend) a lift in
the client’s car when they had to carry out an emergency stop. The claimant was thrown forward and hit the back of the driver’s seat. The claimant suffered a broken collar bone
as a result. The client confirms that they did not ensure that the claimant was wearing a
seatbelt. They had presumed that either the claimant’s father had secured the claimant’s
seatbelt when they had sat the claimant in the car or that the claimant themselves had
fastened the seatbelt.
The solicitor has advised the client that it is likely that they will be held to have breached
the duty of care they owed to the claimant and that the breach caused the claimant’s injury.
The solicitor is considering the applicability of any available defence(s).
Which of the following statements best explains whether the client will be able to
successfully rely on an applicable defence?
A Yes, because the claimant’s father was clearly contributorily negligent and this can be
argued to reduce the level of compensation the client will have to pay the claimant.
B Yes, because the claimant was clearly contributorily negligent.
C Yes, because the claimant’s father consented to the risk of their son’s injury when they
sat the claimant in the client’s car without ensuring that the seatbelt was fastened.
D No, because the claimant’s age makes it highly improbable that the claimant would be
found to have been contributorily negligent.
E No, because, as the claimant’s father did not know of the risk of the client carrying out
an emergency stop, they could not be said to have consented to the risk.

Answer 40

Answer
Option D is correct. While there is no age below which a child cannot be contributorily
negligent, the claimant’s age makes it highly improbable that the claimant would be found
to have been contributorily negligent. The ordinary 8 year old would not be expected to have
fastened their own seatbelt.
Option A is wrong because the defence of contributory negligence is used as against a
claimant ie the child in this case and not their father. The claimant’s father may have been
negligent but the child is not ‘identified’ with the negligence of their parent. If the claimant’s
father has been negligent, then the client can seek a contribution under the Civil Liability
(Contribution) Act 1978. However, this does not prevent the claimant from recovering all of
their compensation from the client.
Option B is wrong because it cannot be said that the claimant was clearly contributory
negligent (see above).
Option C is wrong because the defence of consent only applies as against the claimant. Any
apparent consent by the claimant’s father is irrelevant.
Option E is wrong for the same reason as option C.

Question 41

Question 2
A claimant suffered a badly broken leg while being a passenger on a motorbike driven
by the defendant. The defendant pulled out of a side road into the path of an oncoming
car. The claimant feared that the car would hit the defendant’s motorbike. In order to
avoid this, they jumped from the motorbike and broke their leg in the fall. In fact, the car
driver managed to swerve around the defendant’s motorbike and avoided a collision. The
claimant was not wearing a crash helmet. The Police Accident Report confirms that the
defendant was required to undertake a breath test after the accident. This indicated that
the defendant’s blood alcohol level was in excess of the legal limit.
Which of the following statements best explains why the defendant may be able to
successfully rely on an applicable defence?
A Because the defendant will be able to rely upon the defence of illegality as the
claimant was not wearing a crash helmet.
B Because the defence of contributory negligence could be relied upon by the defendant
if it can be proven that the claimant must have known that the defendant was
intoxicated.
C Because the claimant was clearly contributory negligent by jumping off the motorbike.
D Because the claimant was clearly contributory negligent by not wearing a crash helmet.
E Because the claimant clearly consented to the risk of injury by travelling as the
defendant’s passenger when it would have been obvious that the defendant was
intoxicated.

Answer 41

Answer
Option B is correct – the defence of contributory negligence could be relied upon by the
defendant if it can be proven that the claimant must have known that the defendant was
intoxicated.
Option A is wrong because, while it is a criminal offence not to wear a crash helmet while
travelling on a motorbike, it is not a sufficiently serious offence and there is not a very close
connection between the illegal activity of the claimant and the injury which they suffered. It
would not be contrary to public policy to allow the claimant a remedy in this case.
Option C is wrong because the claimant acted in the ‘agony of the moment’ due to the
defendant’s negligence. The claimant’s actions were a reasonable response to the danger
created by the defendant.
Option D is wrong because, while the failure to wear a crash helmet is treated as an
unreasonable failure to take care of one’s own safety, there must be a causal connection
between the carelessness and the claimant’s injury. Here, the claimant suffered a broken leg
rather than a head injury, ie their carelessness did not contribute to their injury.
Option E is wrong because, in accordance with s 149 Road Traffic Act 1988, it is not possible
for the driver of a motor vehicle to use the defence of consent against a claimant who was a
passenger in their vehicle.

Question 42

Question 1
The claimant is a specialist machine tool operator whose hand was crushed in a setting
machine. Their employer has admitted liability. The claimant earned £30,000 net prior to
the accident with the expectation that they would have been promoted to a position with
a salary of £40,000 net. Medical evidence confirms that the claimant will never be able
to return to their previous occupation. However, the medical evidence also confirms that
they should be able to return to work in a less skilled occupation earning £15,000 net. The
claimant is 30 years old and plans to retire at 65.
Which of the following statements best explains how the claimant’s claim for future loss
of earnings should be calculated?
A Multiplier (35) x Multiplicand (£25,000 (£40,000 minus £15,000)).
B Multiplier (35) x Multiplicand (£40,000).
C Multiplier (35.11) x Multiplicand (£25,000 (£40,000 minus £15,000)).
D Multiplier (35.11) x Multiplicand (£30,000).
E Multiplier (35.11) x Multiplicand (£40,000).

Answer 42

Answer
Option C is correct. The multiplier is correct because applying the current discount rate of
minus 0.25% will increase the multiplier from 35 (years) to 35.11 using the Ogden tables.
(Note, you are not expected to know the actual multiplier, only that it will increase using the
current discount rate of minus 0.25%.) The multiplicand is also correct because it takes into
account both the claimant’s promotion prospects and also the claimant’s prospects of doing
a less well paid job. The figure of £25,000 is correct as it is the claimant’s annual loss of future
earnings.
Option A is wrong as the multiplier is based upon the number of years that the claimant will
not be able to work in their chosen occupation (here 35 years until they would have retired),
but it must be adjusted in accordance with the discount rate using the Ogden tables.
Option B is wrong for the same reason but also because the multiplicand is incorrect. While
the multiplicand can be adjusted to take into account the claimant’s promotion prospects, it
should also take into account the claimant’s prospects of doing a less well paid job. This is an
aspect of the claimant’s duty to mitigate their loss.
Options D and E are incorrect because, while the multiplier is correct, the multiplicands
are wrong.

Question 43

The multiplicand?

Answer 43

The multiplicand is based on the deceased’s net annual earnings. However, the court will
also take into account the fact that, if the deceased were alive, they would have spent part of
those earnings on themselves. So, not all of the deceased’s salary would have been available
to support their dependants. Therefore, in order to avoid over- compensating the dependants,
the deceased’s own living expenses will be deducted from their earnings. That will leave a
reduced figure available as the basis for the dependency claim.
The conventional deduction is 25% for a married person with children and 33% for a married
person without children. Where all of the deceased’s children were no longer dependent upon
them at the time of death, then the conventional deduction would also be 33%.
The deceased might have contributed to the family’s wealth by means other than net annual
salary. If so, such other contributions should become part of the multiplicand calculation. The
contributions which may be taken into account include:
*
perks of the job, eg company car, reduced rate mortgage, reduced shopping bills,
cheaper holidays, etc;
*
services which were provided to the household which will now have to be paid for, eg
gardening, decorating, cooking, cleaning, etc.

Question 44

The multiplier?

Answer 44

multiplier should be based on the period of loss to the dependant, ie
on the period for which the dependency might have continued. Clearly, the longest possible
period a dependency could continue would be until the deceased would have ceased
to work. In the case of a spouse of a deceased wage earner, it is likely that his period of
dependency would continue for this full period – until the deceased ceased to work.
However, if a particular claimant would not be dependent on the deceased for so long, a
shorter multiplier should be applied to their claim. So, in the case of a child, the period of
dependency would be expected to cease when the child reached the age of 18 or ceased
full- time education.

Question 45

Question 2
A solicitor acts for the estate of a person who was killed when a driver negligently collided
into them. The defendant’s insurer has admitted liability. The deceased was a single parent
of a daughter aged 18 years. The daughter has a place to go to university full- time later in
the year. Under the deceased’s will they left all of their estate to their daughter. The estate
has been valued at £1.5 million.
Which of the following statements best explains whether the deceased’s daughter’s
claim for loss of dependency will be successful?
A Yes, because the deceased’s daughter is on the statutory list of people who can claim.
B Yes, because the daughter was clearly financially dependent on the deceased.
C Yes, because the deceased’s daughter is on the statutory list of people who can claim
and they were clearly financially dependent on the deceased.
D No, because the daughter is aged 18 and, therefore, an adult.
E No, because the daughter is due to inherit £1.5 million and cannot, therefore, be said
to be financially dependent upon the deceased.

Answer 45

Answer
Option C is correct as it sets out the two criteria that must be satisfied for a successful claim
for dependency under the Fatal Accidents Act 1976 – they must be both on the statutory list of
people who can claim and be financially dependent on the deceased. The daughter satisfies
both criteria as a child of the deceased who was financially dependent on the deceased (see
below).
Options A and B are wrong as they do not set out both criteria.
Option D is wrong because, while generally a child’s period of dependency ends when they
reach the age of 18, it is extended where the child is in, or as here, expected to be in full- time
education.
Option E is wrong as any moneys a dependant is due to inherit from the deceased are
disregarded under the Fatal Accidents Act 1976.

Question 46

The Fatal Accidents Act 1976?

Answer 46

A claim under the 1976 Act is dependent on the original cause of action by the deceased
person against the defendant. In order to bring a claim under the 1976 Act claimants have
to be able to show that, had the deceased survived, the deceased would have been able to
bring a claim against the defendant themselves.
Therefore, the defendant must have committed a tort against the deceased. Any defence
which was available to defeat the original claim will also defeat the 1976 Act claim. In the
case of the defence of contributory negligence, if the deceased’s own damages would have
been reduced, damages under the 1976 Act will also be reduced

There are three possible claims under the 1976 Act, which are considered below:
*
A claim on behalf of dependants for loss of dependency.
*
A claim for damages for bereavement – limited to certain persons only.
*
A claim for funeral expenses – if paid by the dependants.

Question 47

The Fatal Accidents Act 1976 - loss of dependency?

Answer 47

In order to claim damages for loss of dependency, a person must satisfy two requirements:
*
they must fall within the class of dependants as listed in the 1976 Act (it includes current
and former married spouses/ civil partners, cohabitees who have lived together for at
least two years, parents, children, siblings; the list is definitive, so that if a person does
not fall within it, they cannot make a claim); and
*
they must have been actually financially dependent on the deceased (they must show that
they had a reasonable expectation of pecuniary benefit from the deceased).

Question 48

Damages for bereavement - fatal accidents act?

Answer 48

The only people who can claim damages for bereavement are:
*
the wife, husband or civil partner of the deceased;
*
the parents (or mother if illegitimate) of a minor who was never married or a civil partner.

Question 49

Funeral expenses - fatal accidents act?

Answer 49

Cost of the deceased funeral
(if paid for by the estate)
(calculated using receipts)

Question 50

Question 3
A solicitor acts for the estate of a mother who was negligently killed in a workplace
incident. The defendant’s insurer has admitted liability. The deceased had a spouse and
twin children aged 6 months.
Which of the following statements best explains whether the deceased’s children’s
claim for damages for bereavement will be successful?
A Yes, the children have clearly suffered sorrow and grief as a result of their mother’s
death. The amount will be determined by the court.
B Yes, the children have clearly suffered sorrow and grief as a result of their mother’s
death. The amount of damages is a fixed sum.
C Yes, because the children are on the statutory list of people who can claim. However,
the damages will be split between the children and the deceased’s spouse.
D No, because the award of damages for bereavement is a matter of the discretion of
the court and, because of their age, it cannot be said that the children have suffered
sorrow and grief as a result of their mother’s death.
E No, because the children are not on the statutory list of people who can claim.

Answer 50

Option E is correct: the children will not receive the award because they are not on the
statutory list of people who can claim. The spouse will receive the award (in full) as they are
on the statutory list.
Option A is wrong because the criteria for a claim is not whether the claimant has suffered
sorrow and grief as a result of the death. It is also incorrect that the amount will be
determined by the court.
Option B is correct in so far as the award is a fixed sum (currently £15,120), but states the
wrong criteria for a claim
Option C is wrong as children are not on the statutory list of people who can claim. It is
incorrect, therefore, that the award would be shared with the deceased’s spouse. The spouse
would receive the whole award (it is correct that, if there were more than one person who was
entitled to the award, it would be split between them).
Option D is wrong because it states the wrong criteria and because the court has no
discretion on whether the claimant should receive the award or not.

Question 51

Question 38

A man is employed by a roofing company to repair roofs. The role requires him to wear special gloves in order to protect his hands when he handles roof tiles. Whilst standing on some scaffolding, negligently erected by the roofing company, he falls off, suffers serious injury to his head and brings a claim. He carelessly failed to wear the gloves at the time.

Which of the following best describes whether the company can successfully claim contributory negligence on the part of the roofer?

A. The company cannot claim contributory negligence because the roofer’s carelessness did not cause or contribute to the injury.

B. The company cannot claim contributory negligence because the roofer did not owe the company a duty of care.

C. The company can claim contributory negligence because the roofer’s carelessness caused or contributed to the injury.

D. The company can claim contributory negligence because the roofer’s carelessness materially increased the risk of injury.

E. The company can claim contributory negligence because the roofer owed the company a duty of care.

Answer 51

A - The company cannot claim contributory negligence because the roofer’s carelessness did not cause or contribute to the injury.

Question 52

A driver drives negligently as a result of which he has an accident. A passenger in his car is hurt in the accident. The passenger had a serious pre-existing back condition of which the driver is aware. This condition is exacerbated by the accident and the passenger becomes paralysed.

Which of the following statements best describes whether the passenger can claim damages for his paralysis from the driver?

A. The passenger can claim damages for his paralysis from the driver because the paralysis was in the contemplation of the parties as possible at the time of the accident.

B. The passenger can claim damages for his paralysis from the driver because the driver must take the passenger as he finds him.

C. The passenger cannot claim damages for his paralysis from the driver because it was not reasonably foreseeable that paralysis would result from the accident.

D. The passenger cannot claim damages for his paralysis from the driver because the paralysis did not result from the accident in the normal course of events.

E. The passenger cannot claim damages for his paralysis from the driver because the passenger is partially responsible for the paralysis because of his pre-existing condition.

Answer 52

B - The passenger can claim damages for his paralysis from the driver because the driver must take the passenger as he finds him.

Question 53

An adult man is killed in a car accident. A woman is liable in negligence for causing the accident and the man’s death.

The man was married at the time of his death and is survived by his wife and their one-year old son. The man is also survived by both his parents. The man’s wife, son and parents are all dependent on the man.

The man had made a will leaving all his estate to his wife and son

Who is entitled to claim bereavement damages for the man’s death under the Fatal Accidents Act 1976?

A. The man’s parents only.

B. The man’s wife only.

C. The man’s son only.

D. The man’s wife and son only.

E. The man’s parents, wife and son.

Answer 53

B - The man’s wife only.