Tort Flashcards
A company owns land next to the claimant’s garden. It has left the land derelict and a pernicious weed not native to the area has become established there. The company was aware of the presence of the weed and knew that the weed spreads rapidly and its roots cause damage. However, it did not take any action to remove or control the weed even though it could have done so early on without significant expense. The weed has now spread into the claimant’s garden and is preventing her from developing her garden as she wishes.
In an action by the claimant against the company for damages, which of the following statements is correct?
The claimant is likely to have a successful claim based on private nuisance because the company failed to take reasonable steps to prevent the spread of the weed.
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(B) The claimant is likely to have a successful claim. The encroachment of the weed is causing a substantial interference with the claimant’s use of her land. The company did not create the nuisance; it has arisen by an act of nature. However, the company is still liable for the nuisance arising on its land if it knows or ought to know about it and fails to take reasonable steps to deal with it. (In these circumstances the company is said to ‘continue’ the nuisance.) On the facts, the company did know about the weed and the nature of the risk it posed, and the company failed to take reasonable steps to prevent the spread of the weed even though it could have. So, the claimant is likely to have a successful claim in private nuisance provided she can show that the company continued the nuisance by failing to take reasonable steps to prevent the spread of the weed. (A) is not correct. The company can be held responsible for a nuisance created by an act of nature, as explained above. (C) is not correct. Trespass to land deals with intentional and direct interference with the claimant’s possession of land. In contrast, the tort of nuisance covers damage which is indirect, such as the harm that occurred here. (D) is not correct. Liability under the rule in Rylands v Fletcher requires showing that: (1) the defendant brought onto its land something likely to cause harm if it escapes; (2) the defendant was engaged in a non-natural use of the land; and (3) the thing gathered on the land did escape and caused damage. To establish the second element, the defendant must be engaged in a special use of the land which carries an increased risk of danger to others. Here, the company was not engaged in a non-natural use of the land; in fact, it was not using the land at all. Thus, the company is not liable under the rule in Rylands v Fletcher. (E) is not correct. The company did not create the nuisance so its liability rests on having failed to take reasonable steps to deal with it, as explained above. The company is only obliged to do what is reasonable, not to remove the nuisance whatever the cost.
A man was a spectator at a motor race. He was standing next to the track behind a safety barrier. Suddenly, two cars collided just in front of him. The vehicles crashed through the safety barrier and both drivers were killed. The man was able to jump out of the way of the cars at the last second and was not physically injured. However, he has now begun to suffer from post-traumatic stress disorder (‘PTSD’). Evidence shows that the crash was caused by the negligence of the race organisers.
In an action by the man against the race organisers to recover damages for his PTSD, which of the following best states the likely outcome?
The man is likely to be successful because he was in the immediate area of danger.
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(D) The man will likely have a successful claim based on negligence. The first element of his claim is to show that a duty of care was owed to him. He has suffered psychiatric harm without physical impact, so the rules for duty of care depend on whether he is a primary or secondary victim. Given that he was in the actual area of danger, he is a primary victim. A duty of care is owed to a primary victim provided there was a foreseeable risk of physical injury to them. The psychiatric harm must also be a medically recognised psychiatric condition, which is satisfied on the facts. Therefore, the man was owed a duty of care. The facts show that the duty was breached and that this breach caused the injury. So, the claim is likely to be successful. (A) is not correct. A duty of care can be owed in respect of psychiatric harm caused without physical impact, as explained above. (B) is not correct because it does not state the correct reason why the man is likely to be successful. If the man had not been in the area of danger, he would have been a secondary victim, and it would have been relevant that he witnessed the events with his own unaided senses – but this requirement does not apply here. (C) is not correct because the statement is too broad. It is true that in some circumstances no duty of care is owed in respect of psychiatric harm caused without physical impact. However, it is not correct to say that it is never recoverable. (E) is not correct. The man is likely to be successful for the reasons discussed above. If the man had not been in the area of danger, he would have been a secondary victim, and it would have been relevant that he did not have any ties of love and affection with the immediate victims, but this requirement does not apply to primary victims.
A company employs staff to work with dangerously corrosive chemicals. It provides safety gloves to protect against burns from the chemicals. The gloves wear out after about six months in use. Staff are responsible for checking their own gloves, with no independent supervision, but replacements are freely available on request. Recently a junior staff member suffered chemical burns because his gloves had worn out and allowed the corrosive chemicals to come into contact with his skin.
In a claim by the staff member against the company to recover damages for his injuries, which of the following best describes the position of the company?
The company appears to be in breach of its duty to the staff member because the company should have implemented a system for checking staff safety gloves for wear and issuing replacements.
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(D) The company appears to be in breach of its duty. The company, as the staff member’s employer, owes him a duty of care in the tort of negligence. Here, relevant aspects of such duty relate to the provision of safe equipment and a safe system of work. The company may have taken reasonable care to provide safe equipment, but it has not ensured that the gloves are checked and replaced, so it appears not to have taken reasonable care to establish a safe system of work. Therefore, it appears to be in breach of duty. (A) is not correct. An employer has a duty to take reasonable care to establish a safe system of work. Just making replacement gloves available to staff is not likely to satisfy this, as stated above. (B) is not correct. On the facts, it appears that the staff member may have failed to take reasonable care for his own safety, which contributed to his injury. So, the company can rely on the defence of contributory negligence. However, this is not a complete defence. It is a partial defence, which allows the staff member’s damages to be reduced to reflect his share in responsibility for the damage. (C) is not correct. Whilst it is correct to say that the company has provided safe equipment by making the safety gloves available, the duty owed to the staff member also covers a safe system of work. It is likely that the company has not taken reasonable care to establish a safe system of work, and so is in breach of its duty to the staff member, as explained above. (E) is not correct. Although the general rule in the tort of negligence is that no duty of care arises in relation to an omission to act (subject to exceptions), the duty owed by an employer to employees is a positive duty: to take reasonable care for the safety of employees. One aspect of such duty is taking positive action to establish a safe system of work.
A young man aged 20 was killed instantly in an accident caused by the negligence of the defendant. Because he died instantly, he suffered no pain. There was no damage to any of his property and he suffered no loss of earnings. He was unmarried and left no dependants but was survived by his parents.
If an action in tort is brought against the defendant in respect of the accident which killed the young man, which of the following best states the likely outcome?
There can be no successful claim because the man has not suffered any actionable damage.
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(A) Given that the man was killed instantly with no pain, no damage to property, and no loss of earnings, he has not suffered any actionable damage. There is no claim in respect of the death itself. So, although an existing cause of action does survive death for the benefit of the claimant’s estate, on these facts there is no existing claim to survive. (B) is not correct. As stated above, there is no existing cause of action to survive the man’s death. In addition, where a claim does survive, no damages are recoverable for loss of earnings in the period after death. (C) is not correct. Bereavement damages are only open to a parent where the deceased was a minor (and unmarried). The deceased here was 20, so not a minor. (D) is not correct. It is true that there can be no successful claim for bereavement damages. However, it is not correct that the parents could recover damages for the man’s earnings in the years after his death. There can be no claim for these lost earnings because the man’s parents were not financially dependent on him. (E) is not correct. It is not correct that claims in tort do not survive the death of the parties. Had the man had a valid claim for damages, it would have survived his death, as discussed above.
A woman has a will in which, because of a family quarrel, she left all her wealth to charity and nothing to her two daughters. She then becomes reconciled with her daughters. She instructs her solicitor to draw up a new will which revokes the old one and instead leaves all her wealth to the daughters. The solicitor negligently fails to act on the instructions with sufficient speed, and the woman dies before a new will has been drawn up. The old will remains valid and her daughters do not inherit any of her wealth.
In an action by the daughters against the solicitor to recover damages for their lost inheritance, which of the following best states the likely outcome?
The daughters are not likely to recover because it would not be fair, just, and reasonable to impose a duty of care on the solicitor towards the daughters in the circumstances.
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(E) The daughters are likely to recover. The daughters’ claim will be in the tort of negligence to recover their loss of legacies under the will. This loss is pure economic loss, which generally is not recoverable in the tort of negligence. However, an exception applies where a person providing a service, such as drafting a will, has undertaken a responsibility towards those benefiting from it, such as the beneficiaries under the will. So, a duty of care was owed by the solicitor to the daughters. The facts say that the solicitor was negligent by failing to act, and this breach of duty caused the daughters’ loss. (A) is not correct. Whether it would be ‘fair, just, and reasonable’ to impose a duty of care is one of the factors to be applied in a novel duty situation. However, this is not a novel duty situation because, in the case of negligent provision of services causing pure economic loss, there are already established rules for when a duty of care will be owed. (B) is not correct. It is true that solicitor to client is an established duty situation. However, the facts here do not relate to a solicitor to client relationship because the daughters are not the solicitor’s clients. The duty in question here is solicitor to beneficiary. (C) is not correct. The daughters did not instruct the solicitor, but that is not the factor which determines whether a duty of care was owed to them, as discussed above. (D) is not correct. It is true that the daughters have suffered pure economic loss, but they are likely to be owed a duty of care, as explained above.
Five years ago, doctors employed at a hospital administered an X-ray treatment to patients. Very recently, medical science has discovered that the treatment has some side effects which are slow to develop. Several patients have now developed these side effects and have begun to suffer pain and discomfort.
In an action in negligence by the patients against the hospital, which of the following best explains the likely outcome?
The hospital is not liable because it is unlikely that the patients can establish that the doctors were in breach of duty.
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(C) The hospital is not liable. The doctors owed their patients a duty of care but may not have been in breach of that duty. The doctors are in breach if they fell below a reasonable standard of care. This is assessed having regard for the knowledge available at the time and not with the benefit of hindsight. As the side effects have only recently been discovered, it would not be reasonable to expect the doctors to have taken precautions to avoid them. So, if the doctors were not negligent, the hospital would not be liable. (A) is not correct. The hospital is responsible for the actions of the doctors employed there (under the principle of vicarious liability and also because it owes its own duty to the patients). However, the hospital will not be liable if the doctors have not fallen below a reasonable standard of care, as explained above. (B) is not correct because, on the facts, the doctors did not fail to take reasonable care, as explained above. (D) is not correct because it refers to the standard of strict liability imposed by statute in respect of defective products. That standard is not applicable here because the facts do not relate to the supply of a product. (E) is not correct because the patients did not consent to the risks of treatment because they were not aware of them.
A woman runs a catering business. She cooks on an electric grill. She was catering for an event and had purchased 20 steaks at £5 each. She expected to sell them for £10 each. Unfortunately, the grill malfunctioned and all the steaks were burnt. She lost the cost of the steaks and the expected profit. She was also unable to use the grill at the next event she had booked, and so lost the £500 profit she expected to make there. The shop at which she purchased the grill has gone out of business, but she has been able to trace the manufacturer. Tests have shown that the grill malfunctioned because of a lack of proper care in the manufacturing process.
In an action by the woman against the manufacturer, which of the following best states the likely outcome?
The woman will be able to recover the original cost of the burnt steaks and the profit she expected to make on them, but not the lost profit from the next booking.
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(C) The woman will be able to recover everything except the lost profit from the next booking. The woman is owed a duty of care by the manufacturer in respect of the damage to the steaks and the consequential loss of profit on them. The facts show that the duty has been breached, causing her damage. However, a manufacturer does not owe a duty of care in respect of the cost of damage suffered by a defective product acquired by the claimant. This is classed as pure economic loss. So, the claimant cannot recover her loss of profit on the next booking resulting from the malfunctioning grill. (A) is incorrect because not all of the losses are unrecoverable as pure economic loss, as discussed above. (B) is incorrect because the lost profit on the steaks is also recoverable as consequential economic loss from the damage caused by the defective product. (D) is incorrect because the lost profit on the next booking is pure economic loss and so is not recoverable in tort. (E) is incorrect because the manufacturer does owe the woman a duty of care in tort in respect of the damage to her property, as explained above. (If the woman had bought the grill from the manufacturer, she would have had a claim in contract, where pure economic loss is recoverable.)
A child, aged 7, was playing with other children in a public park. She threw a ball to her friend, but it missed and bounced in a puddle. It then hit a passerby and made a muddy stain on her new jacket, which had cost £100 only the week before.
If the passerby were to pursue a claim against the child, which of the following statements best explains the likely outcome?
The claim will not succeed, provided the child met the standard of care to be expected of a reasonable child of the same age.
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(C) The claim is not likely to succeed provided the child met the standard of care to be expected of a reasonable child of the same age. There is no minimum age for liability in tort, so the child does owe a duty of care to the passerby. However, when considering breach of duty, a child must meet the standard of care of a reasonable child of the same age. So, because the child did not fall below that standard, the claim is not likely to succeed. (A) is not correct. For claims under the Consumer Protection Act 1987 there is a statutory exclusion for damage to property not exceeding £275. However, this is not relevant on the facts of the question. (B) is not correct. As discussed above, the child does owe a duty of care but was not in breach. (D) is not correct. When considering breach of duty, the standard of care remains objective. So, the court does not look at the level of care that this particular child was capable of, but at the standard to be expected of a reasonable child of the same age. (E) is not correct. When considering breach of duty, a child is not measured against the standard of care expected of a reasonable adult, but against that of a reasonable child of the same age, as discussed above.
A collector owns anvils which he agreed to lend to a museum. The museum hired a removal company to transport the anvils to the second floor of the museum. The movers used a rope and pulley apparatus to lift the anvils on the outside of the building to the second-floor window. However, they failed to attach the rope tightly enough and while one anvil was being lifted, it slipped and fell to the ground.
The anvil was not damaged. In a claim by the collector against the movers, which of the following is correct?
The collector has no claim against the movers because he cannot establish causation of damage.
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(D) The collector has no claim because no damage was caused to his goods. Since the damage was caused accidentally, any claim would need to be in the tort of negligence. For an action in negligence the collector would need to show that the movers owed him a duty of care, that they were in breach of duty, and that the breach caused damage. Negligence is not actionable without proof of damage and, since his goods were not damaged, he has no claim. (A) is not correct. While the collector had no contract with the movers, they could still owe him a duty of care in the tort of negligence. (B) is not correct. The tort of trespass requires an unlawful interference with the collector’s possession of the goods. The movers had permission from the collector to move the goods so there was no unlawful interference. (C) is not correct for two reasons. First, the principle of res ipsa loquitur is unlikely to apply here, because there is an explanation for how the accident happened. Second, the principle of res ipsa loquitur is used to assist in proving breach of duty, whereas here the claim will fail because the collector cannot establish causation of damage. (E) is not correct. It is true that the collector has no claim in either trespass or negligence, but this is not because the movers did not intend to damage the goods. An intention to cause damage would not be a required element in either trespass or negligence.
A homeowner negligently cut down a large tree on his property so that it fell on his neighbour’s garage, causing the roof to collapse. The neighbour happened to be in the garage at the time and suffered some minor cuts from broken glass. However, the neighbour had a pre-existing blood clotting disorder that required her to be hospitalised for several weeks because of the cuts. She also developed post-traumatic stress disorder from the sudden collapse of the roof whilst she was in the garage. In addition, a classic car worth 10 times the price of a standard luxury sedan was totally destroyed by the collapse. The neighbour brings an action against the homeowner to recover all of the damages she suffered. The homeowner acknowledges liability for damages for the destroyed roof, the neighbour’s cuts from the broken glass, and the value of a standard luxury sedan that could have been garaged by the neighbour.
Will the neighbour recover damages for her hospital stay and post-traumatic stress disorder, and for the full value of the classic car?
Yes as to her hospital stay, the post-traumatic stress disorder, and the full value of the classic car.
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(D) The homeowner will be liable for all damage elements claimed by the neighbour. 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 or damage to the claimant, and (iv) the loss or damage was not too remote. Here, the homeowner had a clear duty not to cause damage to the neighbour’s person or property whilst cutting down the tree, and his breach of that duty caused harm to the neighbour. (B) and (C) are incorrect because damages for psychiatric injury that accompanies physical injury can be recovered in a negligence action along with the physical injury, so the neighbour is likely to recover damages for the post-traumatic stress disorder. (E) is incorrect. 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 neighbour would likely be able to recover for her hospital stay caused by her pre-existing blood clotting disorder. (A) is incorrect. Another 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 extent of the harm need not be foreseeable. On the facts, it was foreseeable that property in the garage would be damaged or destroyed when the tree caused the roof to collapse. So, even though the car that was destroyed was much more expensive than might have been foreseen, the neighbour can recover the full value of the car.
A walker out for a walk in the country accidentally strayed onto land belonging to a landowner, where he had no right to be. The landowner asked him to leave. The walker reacted angrily so the landowner took a gun and fired a warning shot at the walker. He only meant to frighten the walker but in fact he caused a much more serious injury.
In a claim by the walker against the landowner, which of the following statements is correct?
The landowner has committed the tort of battery and is liable for the full extent of the injury caused to the walker.
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(B) The landowner has committed a battery by the intentional and direct application of unlawful force to the walker. The landowner must intend his actions but need not intend to cause the injury which results. Thus, he is liable for the full extent of the injury caused to the walker. Therefore, (C) is not correct. (A) is not correct. The walker would only need to establish that a duty of care was owed to him where harm was caused to him accidentally. In this case, the landowner’s actions are intentional, and the walker can rely on the tort of battery, as stated above. (D) is not correct. Self-defence applies where a person reasonably believes that he is being, or is about to be, attacked. On the facts, this may be satisfied because the walker reacted angrily. However, the force used must be reasonable and proportionate to the threat. Shooting the walker with a gun was not a reasonable and proportionate response. So, self-defence is not available. (E) is not correct. The walker was committing the tort of trespass (because he entered the land intentionally even though he did not intend to trespass). However, the mere fact that he was a trespasser does not absolve the landowner from liability. (Note that the defence of illegality does not apply. The defence of illegality prevents a claimant from basing a claim on their own illegal actions, but that is not the case here - the walker has committed only a tort.)
A motorist was driving his van along a road, carefully and within the speed limit. Suddenly, and without warning, a child ran into the road immediately in front of the van. The motorist was forced to swerve to avoid hitting him. The van collided with a car parked at the side of the road. There was a passenger sitting in the car. She suffered cuts and bruising and an injury to her neck caused by the impact. The passenger was afraid that she would be crushed and as a result has begun to suffer from post-traumatic stress disorder (‘PTSD’).
In an action by the passenger against the motorist, which of the following best describes the likely outcome?
The motorist did owe a duty of care to the passenger in respect of all her injuries but does not appear to be in breach of that duty, so therefore the motorist would not be liable.
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(B) The motorist owed the passenger a duty of care. However, on the facts, he was driving carefully and within the speed limit, and appears to have responded reasonably to the actions of the child. Therefore, he does not appear to have fallen below a reasonable standard of care and would not be in breach of duty. Therefore, he is not likely to be liable. (A) is not correct. It is likely that the motorist would not be liable – but this choice does not give the correct reason. The motorist did owe the passenger a duty of care – driver to other road users is an established duty situation. However, the motorist does not appear to be in breach of that duty, as discussed above. (C) is not correct. It is likely that the motorist would not be liable, but this choice does not give the correct reason. The passenger did not suffer pure psychiatric harm. The PTSD 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 motorist does not appear to be in breach of that duty, as discussed above. (D) is not correct. It is correct to say that a duty of care was owed, but it is not correct to identify this as a duty in respect of pure psychiatric harm, because the passenger’s PTSD was consequent on her physical injuries. Also, the fact that a duty of care is owed does not, by itself, establish that the motorist would be liable. On the facts, the motorist does not appear to be in breach of duty. (E) is not correct. The motorist owed the passenger a duty of care in respect of all her injuries, including the PTSD. However, he does not appear to have breached that duty, as discussed above. Therefore, he is not likely to be liable for any of the passenger’s injuries.
A football player became ill soon after consuming sunflower seeds manufactured by a snack company. The package of seeds was inspected, and foreign matter was discovered on the seeds.
In an action by the football player against the snack company in respect of his illness, which of the following will be most helpful to the snack company in defending the claim?
The football player has acknowledged that he has no evidence that his illness was caused by the foreign matter on the seeds.
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(C) The football player’s acknowledgment of no evidence of causation would be the snack company’s best defence. The football player would pursue his claim under the Consumer Protection Act 1987 (‘CPA’). The snack company, as producer of the product, is an appropriate defendant. To succeed in a claim, the footballer must show that he has suffered damage caused by a defect in a product. Although he may be able to show that the sunflower seeds were defective, he does not have evidence to show that this defect was the cause of the damage which he suffered. Therefore, he has not established all the elements for a successful claim. (A) is not correct. Liability under the CPA is strict, so it would not help the snack company to show that it was not at fault in not discovering the mould. There is a defence under the CPA where the state of scientific and technical knowledge was not such that the producer might be expected to have discovered the defect (the ‘state of the art’ defence). However, this defence has been narrowly interpreted and is not available where the risk is known about but cannot be avoided. So, on the facts, this defence would not be available to the snack company. (B) is not correct. If damage was caused by a defect in the product, the fact that the product (sunflower seeds) were sold in their natural state would not assist the snack company. (D) is not correct. Liability under the CPA is strict. It does not depend on establishing that the snack company was in breach of a duty to take reasonable care. (E) is not correct. Liability under the CPA cannot be excluded.
A pedestrian saw a bus suddenly swerve and begin to hurtle toward him. The bus driver had momentarily lost control whilst attempting to light a cigarette. To avoid being hit, the pedestrian jumped off the road into a landowner’s garden. He landed in a bed of prize-winning roses and damaged them extensively.
Which of the following states the likely result in a claim by the landowner against the bus driver?
The bus driver is liable for negligence because he lost control of the bus, and this resulted in the damage to the landowner’s property.
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(C) The bus driver is liable to the landowner in a negligence action. The bus driver would owe a duty of care to the landowner. Driver to other road users is an established duty situation, and it is likely that this duty would also extend by analogy to the owners of property situated next to the road. (Alternatively, if this were viewed as a novel duty situation, the criteria applied in these cases would likely result in the imposition of a duty of care.) The bus driver is in breach of duty if he fell below the standard of care to be expected of a reasonable bus driver, which he did by lighting a cigarette whilst driving. The damage to the claimant’s roses was caused by the bus driver’s breach of duty. Although the pedestrian intentionally jumped into the garden, his instinctive action would not break the chain of causation between the driver’s breach and the owner’s damage. This is because it is an action which the defendant clearly ought to have foreseen as a very likely consequence of his negligence. (A) is incorrect because trespass to land requires an intentional interference with the claimant’s possession of land, and the driver clearly did not have the necessary intention. (B) is incorrect because the bus driver did owe a duty of care to the landowner, as explained above. (D) is incorrect because, when assessing breach of duty, the standard of care is objective and impersonal. So, what matters is the risk a reasonable person would have foreseen, not the defendant’s own perception of the risk he created. (E) is incorrect because, although the pedestrian’s action was intentional, it would not break the chain of causation between the driver’s negligence and the owner’s damage, as explained above.
A journalist wrote a report, which was printed in a national newspaper, stating that a politician had committed adultery. The politician acknowledges that the report is true but claims that publication amounted to an unjustified interference with his right to keep his family life private.
If the politician seeks to pursue a claim against the journalist in respect of the report, which of the following best describes the likely outcome?
The politician will not have a successful claim for defamation because the information published is true.
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(C) The politician will not have a successful claim for defamation. The statement referring to the politician was published and is likely to be defamatory. However, it is a complete defence to a claim in defamation that the statement is true. (A) is not correct. Any claim in defamation would be defeated by the defence of truth (as stated above) so the journalist would not need to establish any other defence. (B) is not correct. Even if the politician did have a reasonable expectation of privacy in the information disclosed, he cannot have a successful claim in defamation because the information disclosed was true, as stated above. (D) is not correct because it does not state both elements required for a successful claim for misuse of private information. Even if the information disclosed was private, the claim will fail if it was in the public interest for the information to be disclosed. (E) is not correct because a claim for misuse of private information can be made even if the information disclosed is true, provided that there was a reasonable expectation of privacy in respect of the information and it was not in the public interest for the information to be disclosed.
