TORT Flashcards
A man has a heart attack at home and his wife calls for an ambulance. It takes the ambulance four hours to arrive as all local ambulances are dealing with a multiple car crash. The local Ambulance Service has recently suffered cuts in funding. By the time the ambulance arrives, the man is dead. Which of the following statements is most accurate regarding whether a duty of care was owed to this man by the ambulance service?
A duty of care was not owed as policy reasons justify the delay.
A duty of care was owed given the severity of his illness.
A duty of care was owed to arrive within a reasonable time.
A duty of care was owed to arrive as soon as possible given the proximate relationship between the man and ambulance service.
A duty of care was owed as operational failures have led to the delay.
A duty of care was owed to arrive within a reasonable time.
Correct:There is clear precedent that on acceptance of a 999 call by the ambulance service, they owe a duty of care to respond within a reasonable time (Kent v Griffiths & Others[2000] 2 All ER 474).
While the other options might sound plausible, they are each incorrect.
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others[2000] 2 All ER 474). Whether policy reasons (cuts in funding) are the cause of the delay is an argument relevant to breach of duty.
There is established precedent for the ambulance service owing a duty of care on acceptance of the 999 call (Kent v Griffiths & Others[2000] 2 All ER 474), so the courts would not have to discuss whether there was a proximate relationship between the claimant and defendant.
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others[2000] 2 All ER 474). Whether operational failures are the cause of the delay is an argument relevant to breach of duty. For example, should they have sent one of the ambulances at the car crash to the man having a heart attack?
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others[2000] 2 All ER 474), regardless of the severity of the illness. Decisions made regarding who to prioritise would be an argument relevant to breach of duty.
A woman is in a supermarket when she collapses from a heart attack. The store manager puts a call out over the tannoy system asking if there is a doctor present. A customer hears the announcement and being a nurse comes forward and tries to help. The nurse fails to put the woman in the recovery position and the woman later dies.
Which of the following statements is the court most likely to agree with in relation to duty of care?
The store manager owed the woman a duty of care as he took steps that suggested he had assumed responsibility for her welfare. The nurse owed a duty of care once she started to help.
The store manager did not owe the woman a duty of care as he omitted to help her. The nurse owed a duty of care once she started to help.
The store manager owed the woman a duty of care as he was in a position of responsibility. The nurse owed a duty of care once she started to help.
The store manager did not owe a duty as he could not foresee the harm. The nurse owed the woman a duty of care as she assumed responsibility for her welfare.
The store manager did not owe the woman a duty of care as they were strangers. The nurse, as a qualified medical professional, owed a duty to assist.
The store manager owed the woman a duty of care as he took steps that suggested he had assumed responsibility for her welfare. The nurse owed a duty of care once she started to help.
Correct. Had the store manager done nothing then no duty of care would be owed. However, as he made an announcement over the tannoy he has arguably taken steps that suggest he has assumed responsibility for the woman’s welfare (Barrett v Ministry of Defence [1995] 1 WLR 1217). The nurse owed a duty of care once she started to assist (Barrett v Ministry of Defence).
While the other options might sound plausible, they are each incorrect.
Even if the claimant and defendant are complete strangers, a duty of care can be owed where the defendant assumes responsibility for the claimant’s welfare. The fact the nurse was a qualified medical professional does not mean she owed a duty to assist. The duty only arose once she started to assist.
The store manager’s position at work did not mean he owed a duty.
A reasonable person would be able to foresee personal injury if a woman collapsed.
The store manager has not omitted to help her. He has taken steps that suggest he has assumed responsibility for her welfare.
Two friends are in a sailboat. The boat begins to sink and the two friends shout ‘help’ repeatedly to Friend A who is watching from the shore. Friend A hears them but does nothing to help them as he cannot swim.
Which of the following statements best describes whether a duty of care was owed by friend A to the two friends?
Friend A owed a duty of care to assist once he heard the two friends shouting for help.
Friend A owed a duty of care as he/she could foresee the risk of personal injury.
Friend A owed a duty of care to assist as Friend A had assumed responsibility for the welfare of the two friends.
Friend A did not owe a duty of care as there was nothing he/she reasonably could have done to help given he/she could not swim.
Friend A did not owe a duty of care, his failure was one of omission.
Friend A did not owe a duty of care, his failure was one of omission.
Correct
Correct. As a general rule, the law of tort does not impose a duty of care for a mere failure to act (Smith v Littlewoods Organisation Ltd [1987] AC 241). None of the exceptions to this general rule apply.
While the other options might sound plausible, they are each incorrect.
It does not matter that Friend A heard the two friends shouting help. Friend A would only owe a duty of care once he started to assist and had assumed responsibility for their welfare.
The fact pattern does not suggest that Friend A assumed responsibility for the two friends – he/she omitted to do anything.
Friend A may well have foreseen the risk of personal injury if he or she did nothing. However, a duty of care would not be imposed on this basis alone. There would have to be some kind of ‘proximity’ between the parties.
The fact that Friend A could not swim is irrelevant. Friend A was not obliged to help his/her friends even if he/she could swim.
The door to an off licence is left unlocked one night by a cleaner. Some youths enter, consume large quantities of alcohol and cause lots of damage. When leaving the off licence, the youths vandalise the expensive garden ornaments belonging to the neighbour of the off licence. This has never happened before.
The cleaner owes the off licence a duty of care as he/she created the dangerous situation.
The cleaner owes the off licence a duty of care as the damage to the off licence was reasonably foreseeable.
The cleaner does not owe the off licence a duty of care as this would be unfair, unjust and unreasonable.
The cleaner owes the off licence a duty of care due to their contractual relationship.
The cleaner does not owe the off licence a duty of care as she is unlikely to be able to pay any damages.
The off licence does not owe the neighbour a duty of care as they could not foresee the damage caused by the vandals.
The cleaner owes the off licence a duty of care due to their contractual relationship.
The off licence does not owe the neighbour a duty of care as they could not foresee the damage caused by the vandals.
Correct. The cleaner has omitted to lock the door. As a general rule in the law of tort, no duty of care is owed for an omission (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, this case falls within one of the exceptions to the general rule and Stansbie v Troman [1948] 2 KB 48can be relied on as precedent. The cleaner has failed to perform a quasi/contractual obligation.
The off licence would not owe the neighbour a duty of care because they could not foresee the property damage caused by the vandals. The facts are comparable to Smith v Littlewoods Organisation Ltd [1987] AC 241. Geographic proximity will not be enough to create a duty of care between the off licence and neighbour. There needs to be a closer relationship (see exceptions) for a duty of care to be imposed for a failure to prevent a third-party cause harm.
While the other options might sound plausible, they are each incorrect.
The damage to the off licence was reasonably foreseeable to the cleaner. However, the courts would not have to consider this as there is precedent they can rely on in relation to the cleaner owing the off licence a duty of care.
Geographic proximity will not be enough to create a duty of care between the off licence and neighbour. There needs to be a closer relationship (see exceptions) for a duty of care to be imposed for a failure to prevent a third-party cause harm.
The courts have precedent to rely on in relation to the cleaner owing the off licence a duty of care, so they would not have to consider whether it was fair, just and reasonable to impose a duty. If they did consider policy, arguably it would be fair to impose a duty on the cleaner. See above regarding geographic proximity.
The off licence probably does not owe a duty of care, partly, because they would not have foreseen the damage caused by the youths (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, given there is precedent, it is irrelevant that the cleaner would be unable to pay damages. The cleaner would owe a duty of care.
The cleaner might owe a duty based on the fact that they created the danger by leaving the door unlocked, Stansbie v Troman [1948] 2 KB 48. However, the off licence does not owe the neighbour a duty of care simply because they were responsible for the cleaner. This does not fall into any of the exceptions for a failure to prevent a third-party causing harm.
A police informant is claiming damages for negligence by the police. It is alleged that the police negligently left the informants contact details unattended in a police car which was stolen, and eventually reached the criminal against whom the informer had given evidence. The criminal broke into the informers’ house and physically assaulted them.
Which of the following statements best describes the principal reason why the police might owe the informer a duty of care?
A duty of care is owed because it is fair, just and reasonable.
A duty of care is owed because the police assumed responsibility for the informant’s welfare.
A duty of care is owed because the informant is an identifiable victim.
A duty of care is owed because the police created the source of danger.
A duty of care is owed because the informant has suffered a personal injury.
A duty of care is owed because the police assumed responsibility for the informant’s welfare.
Correct
Correct: This answer best reflects why the Court of Appeal imposed a duty of care in the case of Swinney v Chief Constable of Northumbria (No.2), The Times, 25 May 1999 (same facts as the fact pattern). The police assume responsibility to protect informers against the criminals they give evidence about. Informers should not be considered like other members of the public; they have a special relationship with the police.
While the other answer options might sound plausible, they are each incorrect.
It would be fair, just and reasonable to impose a duty of care but this would not be the principal reason for imposing a duty (rather it would support that conclusion). The focus would be on whether the police had assumed responsibility for the claimant’s welfare (proximity).
Whilst being an identifiable victim certainly supports the argument for imposing a duty of care, recent case law suggests that not only must the claimant be identifiable, but the police must also have clearly assumed responsibility for the claimant’s welfare (Mitchell v Glasgow City Council [2009] 1 AC 874 , CN and GN v Poole Borough Council [2019] UKSC 25).
Whilst creating the source of danger could support the argument for imposing a duty of care, this argument was not emphasised in Swinney and focus seems to be on assumption of responsibility.
It is likely that in this scenario a duty of care would be owed for personal injury, but not for any property damage or economic loss. However, the fact the informer has suffered personal injury is not the reason why a duty would be owed.
A householder carries out some trivial repair work on her property, including the door handle on her front door. The handle has not been fixed properly. When the householders’ friend comes over, he pulls the handle and it comes off in his hand. He falls backwards and sprains his wrist.
Which of the following statements best describes the standard of care owed by the householder?
The standard of care expected of the householder would be that of the reasonable man.
The standard of care expected of the householder would be that of a reasonably competent carpenter.
The standard of care expected of the householder would be that of a reasonable homeowner.
The standard of care expected of the householder would be that of a reasonably competent professional carpenter.
The standard of care expected of the householder would be that of a reasonably competent amateur carpenter.
The standard of care expected of the householder would be that of a reasonably competent amateur carpenter.
Correct
Correct. The facts are very similar to the case of Wells v Cooper [1958] 2 QB 265 in which the defendant fixed his doorknob. When the claimant opened the door, the doorknob came away from the door and the claimant slipped, fell and injured himself. There were two standards to choose from, that of the reasonably competent professional carpenter and that of the reasonably competent amateur carpenter. The Court of Appeal held the defendant to the standard of the reasonably competent amateur carpenter, which was lower than the standard expected of a professional. The job in question was a trivial domestic replacement. Had the job been something more ambitious, the standard might have been different.
While the other answer options might sound plausible, they are each incorrect.
Given that the householder was carrying out trivial repair work, it would not be appropriate to hold her to the professional standard. It is unlikely that special skills and expertise were needed.
It is not incorrect to say that the householder would be held to the standard of the reasonable man, but it is more accurate to say that of the reasonably competent amateur carpenter. The standard of care attaches to the act (Wilsher v Essex Area Health Authority [1987] QB 730).
The same reasoning applies to the inaccuracy of a reasonable householder. This is too broad.
It is important to make it clear whether the standard is amateur or professional, as this will affect whether or not there has been a breach of duty. Less will be expected of the amateur carpenter.
A patient develops permanent spinal curvature after undergoing routine surgery to his back. The surgeon has used the ‘Slice and Dice’ technique which carries a 15% risk of spinal curvature. The newer ‘Plice’ technique, as very recently highlighted in ‘Cutting Edge Weekly’ medical magazine, carries only a 5% risk of spinal curvature. However, the surgeon was not aware of it.
Which of the following statements best describes breach of duty in relation to the surgeon?
It is reasonable to expect the surgeon to keep up to date and he therefore should have used the ‘Plice’ technique. It was recently featured in ‘Cutting Edge Weekly’ magazine and it carries a 10% lower risk of spinal curvature.
It is reasonable to expect the surgeon to keep up to date and informed about all innovations such as the ‘Plice’ technique, by whatever means necessary.
It is unreasonable to expect the surgeon to have been up to date about the ‘Plice’ technique, when the ‘Splice and Dice’ technique has had an 85% success rate so far.
It would be unreasonable to expect the surgeon to have known about and implemented the new ‘Plice’ technique whilst conducting the routine back surgery. This was only recently featured in Cutting Edge magazine; it is a weekly magazine and is not a mainstream medical journal.
It is reasonable to expect the surgeon to attempt to minimise all risk. As such the surgeon should have been aware and employed the ‘Plice’ technique as it was featured in ‘Cutting Edge Weekly’ magazine.
Correct. It would be unreasonable to expect the surgeon to know about every new medical development. The courts recognise that it would be too onerous to expect medics to have to keep up to date with all the very latest treatments and procedures pursuant to Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953. Nevertheless, they must take reasonable steps to ensure they are up to date with mainstream developments especially with the availability of information online (Gascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437). In addition, the name of the magazine suggests it is providing the very latest information, insights and innovations in the medical field rather than being a mainstream journal. The fact that it is a weekly journal means that it might be burdensome to expect a medic to keep up with the pace of a weekly journal.
While the other answer options might sound plausible, they are each incorrect.
Medics must take reasonable steps to ensure they are up to date with mainstream developments (Gascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437) but it is too onerous to expect medics to keep up to date with all the very latest treatments (Crawford v Governors of Charing Cros Hospital, The Times, December 8, 1953).
It would be unreasonable and too onerous to expect a medic to keep up to date with the very latest innovation and to have to implement this new ‘Plice’ technique, as proposed or highlighted in the weekly magazine, in particular, one labelled ‘Cutting Edge’ (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953). So although it is correct to state that the surgeon does not have to keep up to date with the new ‘Plice’ technique, the reasoning i.e. that the other has a 85% success rate, is incorrect.
It is correct to state that surgeon should attempt to minimise all risk, however, it would be unreasonable and too onerous a burden to expect the surgeon to keep up to date with the very latest innovation and to have to implement this new ‘Plice’ technique, as proposed or highlighted in the weekly magazine, in particular, one labelled ‘Cutting Edge Weekly’ (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953).
The surgeon should keep up to date with all mainstream developments per Gascoine v Ian Sheridan & Co and Latham [1994] LS Law Med 437); but to expect the surgeon to have implemented the latest ‘Plice’ technique, despite it carrying a lower risk, would be unreasonable and too onerous a burden (Crawford v Governors of Charing Cross Hospital, The Times, December 8, 1953). The comment that the surgeon should be up to date by whatever means necessary is not a legal requirement.
A footballer attends hospital seeking medical treatment for his injured knee. The doctor recommends surgery. The footballer is asked to sign a consent form before the procedure, which he does. The footballer does not ask, and is not told, of the risks of the surgery. In fact, there is a 1% risk of permanent nerve damage. The operation is carried out without error by the doctor. The footballer develops permanent nerve damage and can no longer play football.
Which of the following best explains the legal position in relation to the potential breach of duty by the doctor?
A doctor has a duty to inform a patient of any risk over 10%. As the risk of permanent nerve damage was only 1%, the doctor has not breached his duty of care.
As the footballer freely signed the consent form before the surgery, there can be no breach of duty for failure to advise on the 1% risk of nerve damage.
The doctor performed the surgery without error and so there is no breach of duty. Further the footballer did not ask about the risks of the surgery and there was therefore no duty on the doctor to inform him of such a small (1%) risk.
The footballer will have to show that a reasonable body of medical men carrying out this medical procedure would have informed him of the 1% risk of nerve damage. If this is established the doctor will have breached his duty of care.
The doctor had a duty to inform the footballer of all material risks of the surgery. The 1% risk may be small, but it would still be material to a footballer. The doctor is in breach of duty.
The doctor had a duty to inform the footballer of all material risks of the surgery. The 1% risk may be small, but it would still be material to a footballer. The doctor is in breach of duty.
Correct
Correct. A doctor owes a duty to inform a patient of all material risks associated with a procedure and of all reasonable alternatives (Montgomery v Lanarkshire Health Board [2015[ SC). The test of materiality applies and requires a doctor to consider what the particular patient would consider material and what a reasonable person in the patient’s position would consider material. In this case a footballer would clearly consider permanent nerve damage a material risk and he should have been informed of this.
While the other options might sound plausible, they are each incorrect, which should be self-explanatory following the feedback above on why this answer was correct. Montgomery v Lanarkshire Health Board [2015[ SC confirms that the Bolam test has no application to a failure to warn of the risks.
A receptionist at a car factory would occasionally walk pass other employees whilst they were working with spray paint. Those working with the spray paint were provided with masks as the employer was aware of the risk of lung cancer from prolonged exposure to the paint. The receptionist contracts lung cancer. Since the receptionist was diagnosed, medical science has concluded that even occasional exposure to the paint increases the risk of lung cancer.
Which of the following statements best describes breach of duty in relation to the employer?
A reasonable employer may not have been able to foresee the likelihood of harm, but given there was some knowledge of the risk of lung cancer and given the ease of precautions (provision of face masks for all employees exposed to the paint), the exposure was in breach of duty.
A reasonable employer would not have known that there was a danger to those who did not have prolonged exposure to the paint, and therefore failure to take precautions against such exposure was not a breach of duty.
A reasonable employer would have provided all employees with any level of exposure to the paint with masks, given the magnitude of potential harm and the ease of precautions, and is thus in breach of duty.
A reasonable employer would not have taken precautions against such exposure as the risk of lung cancer was so low. Such exposure was therefore not in breach of duty.
A reasonable employer would not have taken precautions (provision of face masks) as this was disproportionate to the likelihood of harm. The exposure was therefore not in breach of duty.
A reasonable employer would not have known that there was a danger to those who did not have prolonged exposure to the paint, and therefore failure to take precautions against such exposure was not a breach of duty.
Correct. The courts must assess the defendant’s actions against the knowledge in the industry at the time of the alleged breach (at the time the receptionist was exposed to the paint). This is known as the ‘state of art’ defence (Roe v Minister of Health [1954] 2 QB 66). The employers did not know about the risk of lung cancer from occasional exposure to the paint at the time of the breach and would not, therefore, be expected to take precautions against an unknown risk.
While the other answer options might sound plausible, they are each incorrect.
Whilst the courts will balance likelihood of harm against practicality of precautions when assessing breach (Wagon Mound (No. 2) [1967] 1 AC 617), there must be some foreseeability of harm in order for there to be a breach (Bolton v Stone [1951] AC 850) and there was none here.
As above, whilst the courts will balance magnitude of harm against practicality of precautions when assessing breach (Wagon Mound (No.2) [1967] 1 AC 617), the magnitude of harm must be foreseeable (Paris v Stepney Borough Council [1951] AC 367) in order for there to be a breach and it was not here.
The risk of lung cancer was not low. It was not known at all (in relation to occasional exposure).
Taking precautions against an unknown risk would be considered disproportionate (Latimer v AEC Ltd [1953] AC 643) but there was no foreseeable likelihood of harm.
A father has recently become reconciled with his daughter after a long period of estrangement. As a result, he makes an appointment with his experienced solicitor to amend his will to include a legacy of £100,000 to his daughter. He sees a trainee solicitor instead and instructs him accordingly. One month later, the father dies of a sudden heart attack. Due to pressure of work, the trainee solicitor had not amended the will.
Which of the following statements best describes the standard of care owed by the trainee solicitor?
The standard of care is that of the reasonable man as the trainee solicitor was not professing to be a qualified solicitor.
The standard of care is that of a reasonably competent trainee solicitor.
The standard of care is that of an experienced private client solicitor as an experienced solicitor should have been overseeing the trainee solicitor.
The standard of care is that of a reasonably competent solicitor.
The standard of care is that of the ordinary reasonable man exercising and professing to be a private client solicitor.
The standard of care is that of the ordinary reasonable man exercising and professing to be a private client solicitor.
Correct
Correct. The standard for a professional is the standard of the ordinary reasonable man exercising and professing to have that special skill, which on the facts is that of a qualified private client solicitor (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). It is irrelevant that the person conducting the work was a trainee solicitor as the standard of care is objective and attaches to the ‘act not the actor’ (Wilsher v Essex Area Health Authority [1987] QB 730).
While the other answer options might sound plausible, they are each incorrect.
As mentioned above, it is irrelevant that the person conducting the work was a trainee solicitor as the standard of care is objective and attaches to the ‘act not the actor’ (Wilsher v Essex Area Health Authority [1987] QB 730). Here the act was the act of a solicitor (drafting wills).
It is not incorrect to say that the standard would be that of a reasonably competent solicitor, but it is more accurate to say that of a reasonably competent private client solicitor. Solicitors specialise in particular areas of law and the courts will be concerned with what a reasonable body of private client solicitors would have done, in the same way that the courts differentiate between, for example, GPs and surgeons.
It does not matter that a more experienced solicitor should have been overseeing the trainee solicitor. It is the trainee solicitor that has potentially been negligent and he will be judged by the standard of a qualified solicitor (see above). In any event, level of experience is not really relevant to standard of care as the person need not possess the highest expert skill at the risk of being found negligent. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular profession.
A patient attends A&E with a severe headache. A doctor briefly examines the patient and tells them to stay in the waiting room, where the patient has a seizure and dies. Medical evidence suggests that if the doctor had treated the patient properly, there was a 40 per cent chance of living.
Which of the following statements best describes whether the patient’s estate can claim damages from the doctor for the patient’s death?
The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient materially increased the risk of the patient dying.
The patient’s estate cannot claim damages from the doctor because the seizure was a natural cause of death.
The patient’s estate cannot claim damages from the doctor because the ‘but for’ test is not satisfied.
The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient materially contributed to the patient’s death.
The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient reduced the claimant’s chances of surviving.
The patient’s estate cannot claim damages from the doctor because the ‘but for’ test is not satisfied.
Correct: But for the doctor’s breach (briefly examining the patient), the patient still would have died at that time and in that way on the balance of probabilities (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428). There was only a 40 per cent chance that the patient would have lived if the doctor had examined the patient properly i.e. there was a 60 per cent chance that the patient would have died even if the doctor had examined the patient properly and not been negligent.
While the other answer options might sound plausible, they are each incorrect.
Factual causation cannot be satisfied for personal injuries based on loss of chance (Hotson v East Berkshire Health Authority [1987] AC 750). Where the risk of damage without the breach is 50 per cent or more, the claimant will fail to establish factual causation.
The material contribution test does not apply here. This is not a case where medical science cannot establish the probability that ‘but for’ the breach the death would not have happened. Medical evidence confirms that there was a 60 per cent chance of death even without the breach.
Just because a seizure can be a natural cause of death this does not mean that factual causation will fail. The question is whether the seizure would have happened but for the breach on the balance of probabilities (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428).
The material increase in risk test does not apply here as currently this is confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos (Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
A man is in a car accident and suffers a head injury. On arrival at hospital, the man is not seen by a doctor for five hours. After seeing the doctor, he is immediately referred for an MRI (a type of scan producing images of inside the body), but there is a further delay of two hours. He is left brain damaged. Medical evidence suggests that the car accident, the first delay and second delay were all capable of contributing to his brain damage.
Which of the following statements is most accurate regarding factual causation in relation to the man’s brain injury?
Factual causation cannot be established as it cannot be shown that ‘but for’ the breaches (two delays) the man would not have suffered brain injury.
Given the car accident and two delays were all capable of causing or contributing to the brain injury, the material contribution test is satisfied.
Factual causation fails as it could have been the car accident, not the breaches (the two delays) that caused the brain injury.
There is a greater chance that the breaches (two delays) caused the brain injury than the car accident so factual causation is satisfied.
The two delays materially increased the risk of brain injury meaning factual causation is satisfied.
Given the car accident and two delays were all capable of causing or contributing to the brain injury, the material contribution test is satisfied.
Correct: This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delays) the brain injury would not have happened, but it can establish that the contribution of the delays was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that all three causes were capable of contributing to the brain injury.
While the other answer options might sound plausible, they are each incorrect.
The material increase in risk test does not apply here as currently this is confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos (Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
Given this is a case where the medical evidence cannot attribute the brain injury to a specific cause, but can say that the car accident and breaches (two delays) contributed to the loss, the courts can depart from the ‘but for’ test and apply the material contribution test (Bonnington Castings Ltd v Wardlaw [1956] AC 613). If the medical evidence had said that it was the car accident OR the breaches which caused the brain injury (not both), then factual causation might have failed on the basis that it could have been the car accident rather than the breaches that caused the brain injury, applying the ‘but for’ test as per Wisher v Essex AHA [1988] AC 1074.
Medical evidence established that all three causes were capable of contributing to the brain injury. It has not been possible to separate out the relative contribution of the three factors, so it is not possible to say that there is a greater chance that the breaches caused the loss.
As explained above, this is a case where the courts might depart from the ‘but for’ test and apply the material contribution test instead (three possible causes and the two delays have made a more than negligible contribution) (Bonnington Castings Ltd v Wardlaw [1956] AC 613).
A woman contracts mesothelioma as a result of exposure to asbestos. Medical evidence has proved that mesothelioma (a type of lung cancer) can be caused by a single asbestos fibre entering the lung. The woman was negligently exposed to asbestos by a previous employer over 40 years ago. She was also exposed to asbestos in the general atmosphere as a young girl, as she lived in close proximity to a factory which used asbestos.
Which of the following statements is most accurate regarding factual causation in relation to the previous employer?
Factual causation fails as the woman cannot show on the balance of probabilities that the employer caused her mesothelioma. The woman could have been exposed to the single fibre as a young girl.
Factual causation is satisfied as there is a chance that the employer caused the woman’s mesothelioma.
Factual causation is satisfied as the employer materially contributed to the woman’s mesothelioma.
Factual causation is not satisfied as there are two possible independent causes and the ‘but for’ test therefore fails.
Factual causation is satisfied as the woman can show that the employer materially increased the risk of her contracting mesothelioma.
Factual causation is satisfied as the woman can show that the employer materially increased the risk of her contracting mesothelioma.
Correct
Correct. It is impossible for medical experts to say which exposure caused the mesothelioma. The ‘but for’ test therefore fails as it cannot be said on the balance of probabilities that the employer caused the woman’s mesothelioma (there is only a 50 per cent chance). However, this is an example of where the courts depart from the ‘but for’ test and apply the material increase in risk test (McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32). The employer might well be held liable for damage that it did not cause but this has to be weighed against the argument that people who suffer harm due to their employers’ breach deserve to be compensated. In mesothelioma cases, science is unable to provide the claimant with the means to ever establish factual causation using the ‘but for’ test (unless the claimant worked for only one employer who exposed them to asbestos, which is rare). The courts have therefore concluded that to achieve fairness the ‘but for’ test should be departed from and the material increase in risk test applied. Here it could be shown that the employer materially increased the risk of the woman contracting mesothelioma (given it only takes one fibre to cause the disease).
While the other answer options might sound plausible, they are each incorrect.
This is a situation (mesothelioma cases) where the courts depart from the ‘but for’ test and apply the material increase in risk test instead(McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32). It therefore does not matter that the woman cannot show on the balance of probabilities that the employer caused the mesothelioma.
The employer is liable for the mesothelioma because there is a chance it did cause the disease, but the correct legal terminology is material increase in risk(McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
The material contribution test does not apply here. As mesothelioma can be caused by exposure to a single asbestos fibre, the woman will not be able to prove on the balance of probabilities that the employer materially contributed (made a more than negligible contribution). The employer may have made no contribution at all to the disease.
There are two possible causes and the ‘but for’ test does fail, but this is an example of where the courts depart from the ‘but for’ test and apply the material increase in risk test instead (McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
Larry suffers physical injuries as a result of falling from a theme park ride. The theme park had failed to install appropriate safety measures. Larry is taken to hospital where a surgeon operates on him. Larry has an allergic reaction to the anaesthetic and suffers additional nerve damage.
Which one of the following is correct with regard to legal causation?
The actions of the surgeon will break the chain of causation and the theme park will only be liable for Larry’s original physical injuries and not the nerve damage.
The actions of the surgeon will not break the chain of causation but the theme park will only be liable for Larry’s original physical injuries.
The actions of the surgeon will break the chain of causation and the theme park will not be liable for any of Larry’s injuries.
The actions of the surgeon will break the chain of causation but the theme park will remain liable for all of Larry’s injuries.
The actions of the surgeon will not break the chain of causation and the theme park will be liable for all of Larry’s injuries.
The actions of the surgeon will not break the chain of causation and the theme park will be liable for all of Larry’s injuries.
Correct
Correct. The courts are reluctant to hold that medical treatment breaks the chain of causation and will only do so where the treatment is so gross and egregious as to be unforeseeable (Robinson v The Post Office).
While the other answer options might sound plausible, they are each incorrect.
If the actions of the surgeon did break the chain of causation (which they do not on these facts), the theme park would still be liable for any injuries Larry suffered prior to the surgeon’s act.
The actions of the surgeon are highly unlikely to break the chain of causation because they are not so gross and egregious as to be unforeseeable.
If the actions of the surgeon do not break the chain of causation, the theme park will remain liable for any losses flowing from their breach (physical injuries and nerve damage).
A scaffolder attends a building site where he is working. The day before, his colleague failed to secure some timbers properly. These fall on the scaffolder’s head and cause him to suffer a serious head injury. He had not yet put on his safety hard hat.
What is the scaffolder’s legal position regarding legal causation in his negligence claim against his colleague?
The scaffolder’s failure to wear a hard hat would be considered highly unreasonable and would therefore break the chain of causation. He will not receive any damages for his head injury.
If the scaffolder’s failure to wear a hard hat is considered unforeseeable, this may break the chain of causation.
If the scaffolder’s failure to wear a hard hat is considered unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.
If the scaffolder’s failure to wear a hard hat is considered highly unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.
If the scaffolder’s failure to wear a hard hat is considered unreasonable, this may break the chain of causation.
If the scaffolder’s failure to wear a hard hat is considered highly unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.
Correct
Correct. The scaffolder’s failure to wear a hat might be considered highly unreasonable and therefore break the chain of causation (McKew v Holland). However, this answer reflects the approach of the courts in preferring to reduce the damages of a culpable claimant rather than find that the claimant’s actions have broken the chain of causation.
While the other options might sound plausible, they are each incorrect. (unreasonable is not enough; it has to be highly unreasonable)
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 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.
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.
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.
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 cannot claim for anything as burns from an explosion were not 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 can claim for personal injury for the severe burns as this loss was a direct result of the decorator’s breach.
The woman can claim for personal injury for the severe burns as damage caused by fire was reasonably foreseeable.
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.
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).
During a premier league football match, a footballer suffers a broken leg after another player executes a dangerous and serious foul tackle against them.
Which of the following statements best describes whether the player who executed the tackle (‘the defendant’) can successfully rely on the defence of volenti?
The defendant can rely on volenti because the injured footballer consented to the risk of being tackled during a football match.
The defendant can rely on volenti because the injured footballer had the capacity to consent and knew the nature and extent of the risk of harm by participating in the football match.
The defendant cannot rely on volenti because the injured footballer did not expressly consent to the risk of injury.
The defendant cannot rely on volenti because the injured footballer did not consent to dangerous play showing reckless disregard for their safety.
The defendant can rely on volenti because the injured footballer impliedly consented to the risk of injury by playing in the football match.
The defendant cannot rely on volenti because the injured footballer did not consent to dangerous play showing reckless disregard for their safety.
Correct. This is the correct law for volenti in relation to sport.
While the other options might sound plausible, they are each incorrect.
It is highly unlikely that a participant in sport will be found to have consented to something that happens outside the rules of the game and shows a reckless disregard for their safety (e.g. a dangerous and serious foul tackle).
In order to rely on volenti, the defendant need not prove that the claimant expressly consented to the risk of injury. Consent can be implied. The reason consent has not been implied here is stated in the paragraph above.
Nothing on the facts suggest that the footballer did not have capacity to consent. However, it is highly unlikely that they will be assumed to have known that there was a risk of injury caused by a dangerous and serious foul tackle i.e. by dangerous play demonstrating a reckless disregard for their safety.
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 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.
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 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 be deducted from any special damages awarded. The general damages will include a PSLA award.
Correct
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.
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 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 as the boy’s actions have contributed to the harm he has suffered.
The defence of contributory negligence will apply to negate any liability of the woman.
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.
A supply music teacher (‘the Teacher’) is sent by their agency, to work at a private school for one week. The Teacher is paid by their agency. The school stipulates that the Teacher must arrive at the school before 9am every weekday. They are free to work elsewhere at the weekends. While the Teacher is setting up the school stage for a music concert, they accidentally drop a music stand on the foot of one of the pupils. The pupil suffers swelling and bruising to their foot.
Which of the following statements is most accurate?
The pupil can bring a claim against the Teacher in negligence and the school in employers’ primary liability as they have failed to provide the pupil with competent staff.
The pupil can bring a claim against the Teacher in negligence and against the agency vicariously.
The pupil can bring a claim against the Teacher directly in negligence and vicariously against the school.
The pupil can bring a claim against the Teacher directly in negligence and vicariously.
The pupil can only bring a vicarious claim against the school if they can establish that the Teacher is an employee of the school
The pupil can bring a claim against the Teacher directly in negligence and vicariously against the school.
Correct: The pupil can bring a claim vicariously against the school because even though the Teacher is unlikely to be deemed an employee of the school as they will not satisfy the test from Ready Mixed Concrete v Ministry of Pensions, they may be deemed to be in a relationship akin to employment with the school (Barclays Bank v Various Claimants). They committed the tort as a result of an activity (setting up the music stage) which they performed on behalf of the school and the school exercised a significant degree of control over what the Teacher did.
While the other answer options might sound plausible, they are each incorrect.
The pupil would not be able to bring a claim against the school in employers’ primary liability as they are not an employee of the school.
The pupil can bring a vicarious claim against the school if the Teacher is in a relationship akin to employment with the school (not just if the Teacher is an employee of the school).
The pupil cannot sue the agency vicariously. The Teacher is not the agency’s employee nor are they in a relationship akin to employment with the agency. Applying the economic reality test from Ready Mixed Concrete v Minister of Pensions, it is unlikely that the Teacher will be deemed to be the agency’s employee. The agency is unlikely to exercise the requisite day to day control over the Teacher to render them an employer. In addition, it is unlikely that the Teacher is in a relationship akin to employment with the agency given the five-stage test approved in Barclays Bank.
The pupil would not be bringing a claim against the Teacher vicariously. Vicarious liability is relevant when the claimant sues the defendant for a tort committed by someone else. Here, the Teacher has committed the tort so any claim against the Teacher will be direct.
A yoga instructor employed at a dance academy is asked to cover a Zumba class. The yoga instructor is not supposed to teach Zumba because of a pre-existing knee injury, which their employer knows about. Nevertheless, they agree feeling concerned they may lose their job if they refuse. Halfway through the class the yoga instructor’s knee gives way and their knee has to be operated on. When the yoga instructor returns to work, a colleague laughs at their injury. The yoga instructor gets verbally aggressive and kicks their colleagues’ leg. The yoga instructor has a history of violent mood swings.
The colleague could bring a claim against the yoga instructor in the tort of battery. What other claims arise from these set of facts?
The yoga instructor and the colleague can bring vicarious liability claims against the dance academy.
The yoga instructor and the colleague can both bring direct employers’ primary liability claims against the dance academy.
The yoga instructor can bring a claim in employers’ primary liability against the dance academy. The colleague can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability.
The yoga instructor can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability. The colleague can bring an employers’ primary liability claim against the dance academy.
The yoga instructor and the colleague can both bring vicarious liability and direct employers’ primary liability claims against the dance academy.
The yoga instructor can bring a claim in employers’ primary liability against the dance academy. The colleague can bring both a vicarious claim against the dance academy, and a direct claim in employers’ primary liability.
Correct: the yoga instructor is employed by the dance academy and can therefore bring a claim against them in employers’ primary liability for breach of duty (the duty to take reasonable precautions to ensure an employee’s safety, including safe systems of work) (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57).
The colleague can bring a vicarious claim against the dance academy for the yoga instructors’ assault. A tort has been committed, by an employee and during the course of employment. In addition, the colleague can bring an employers’ primary liability claim against the dance academy. They are employed by the dance academy and can therefore bring a claim against them in employers’ primary liability for breach of duty (the duty to take reasonable precautions to ensure an employee’s safety, including the provision of safe and competent employees) (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57).
While the other options might sound plausible, they are each incorrect.
The yoga instructor cannot bring a vicarious claim against the dance academy. It is the dance academy that has committed the tort and so the yoga instructor must sue them directly.
A crane driver negligently caused personal injury to a woman through their operating of the crane. The crane driver has a contract with the company they work for and this contract describes them as self-employed. The contract stipulates that their working hours are 9am to 6pm and that they must work for the company at least three days a week. They are paid at the end of the month for the number of hours they have worked. They use the company’s crane when working and must wear the company’s uniform. The woman wants to sue this company vicariously for the crane driver’s negligence.
Which of the following statements most accurately describes whether the woman can sue the company vicariously?
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. They are likely to be an employee because they have entered into a contract with the company.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company exerts a high degree of control over the crane driver and the crane driver is paid in exchange for their service.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company pays the crane driver regularly for the number of hours they work each month.
It is unlikley that the crane driver is the company’s employee, meaning the woman cannot sue the company vicariously for the crane driver’s negligence. They are unlikely to be an employee because the contract states that the crane driver is self-employed.
It is unlikely that the crane driver is the company’s employee, meaning the woman cannot sue the company vicariously for the crane driver’s negligence. They are unlikely to be an employee because the company only pays the crane driver for the number of hours worked rather than a fixed salary.
It is highly likely the crane driver is the company’s employee, meaning the woman can sue the company vicariously for the crane driver’s negligence. The crane driver is likely to be an employee because the company exerts a high degree of control over the crane driver and the crane driver is paid in exchange for their service.
Correct. Applying the multiple factors test from Ready Mixed Concrete v Minister of Pensions [1968] 2 QB it is likely that the crane driver is an employee of the company despite being described as self-employed. The crane driver receives remuneration in exchange for their personal service, and the company exert a high degree of control over them, requiring them to work for the company three days a week between 9-6 and to wear their uniform. We are not told of any contractual factors (except the label) that are inconsistent with employment, in fact, we are told that the crane driver must use the company’s tools at work. Overall, this suggests the crane driver is the company’s employee and as their employer, the company can be vicariously liable for their negligence committed during the course of employment.
While the other options might sound plausible, they are each incorrect.
It is correct that the fact the crane driver is paid regularly by the company, this is an indicator that the crane driver is their employee. However, there are additional indicators of the crane driver’s employment status (as discussed above).
The label in a contract as to whether someone is employed or self-employed is taken into consideration when determining employment status, but it is not conclusive. All relevant contractual terms are considered to determine the true nature of someone’s employment status.
The first stage of the test from Ready Mixed focuses on remuneration in exchange for personal service – regular remuneration (not just a fixed salary) is evidence of being an employee. The crane driver must work for the company at least three days a week, so will be receiving regular pay in exchange for their personal service.
Just because the crane driver has a contract with the company, this does not mean that they are an employee. It will be the terms of the contract that determine this, subject to the test from Ready Mixed.
A construction employee is told by their employer that they must wear a safety hat at all times whilst on the construction site. One day they arrive for their shift but have forgotten to bring their safety hat. The site foreman gives the employee a safety hat, but the employee refuses to wear it. The site foreman allows the employee to work anyway. During the employee’s shift they suffer a serious head injury which would have been avoided had they been wearing a safety hat.
Which of the following best explains whether or not the employer has breached its duty of care to the construction employee?
The employer is not in breach of its duty as the construction employee refused to wear the safety hat provided.
The employer is in breach of duty as it has failed to provide safety equipment and safe and competent employees.
The employer is not in breach of its duty as it employed a foreman to try and ensure that a safe system of work was operated.
The employer is not in breach of its duty as it told the construction employee to wear a safety hat at all times.
The employer is in breach of duty as it has failed to operate a safe system of work and to provide safe and competent employees.
The employer is in breach of duty as it has failed to operate a safe system of work and to provide safe and competent employees.
Correct. An employer owes a non-delegable duty of care to its employees both to provide a safe system of work and to operate that system. The foreman is acting on behalf of the company when they fail to operate the safe system in place. The employer can therefore be directly liable for the foreman’s failure to operate the safe system. The question of whether insistence on using safety equipment provided should be resorted to depends on the nature and risk of harm liable to occur if the equipment is not worn. Here the nature and risk of harm is serious and it is probable that insistence on wearing the safety hat was appropriate (Bux v Slough Metals [1974] 1 Lloyd’s Rep 155). In addition, given the foreman allowed the employee to work without a safety hat, the employer has arguably failed to provide safe and competent employees (Black v Fife Coal Ltd [1912] AC 149).
While the other options might sound plausible, they are each incorrect.
The employer has provided safety equipment. The issue is whether the foreman should have insisted on the construction employee wearing the safety hat.
There are circumstances in which it may be appropriate for an employer to insist that an employee wear/use safety equipment. It is often not enough to just provide and tell employees to use safety equipment. Not only must a safe system of work be provided, it must also be operated.
Company A lends their employee bus driver to Company B for the duration of one week. Company A trained the bus driver how to drive their buses. During this week Company A continues to pay the bus driver’s wages and retains the power of dismissal. However, the bus driver drives Company B’s bus which is a similar model to the buses used by Company A. The bus driver negligently opens the door too fast hititng a passenger waiting to get on the bus.
Which of the following statements is most accurate in relation to vicarious liability?
The injured passenger should sue both Company A and Company B vicariously for the bus driver’s negligence.
The injured passenger should sue Company B vicariously for the bus driver’s negligence.
The injured passenger should sue Company A vicariously for the bus driver’s negligence.
The injured passenger cannot sue the bus driver, Company A or Company B vicariously for the bus driver’s negligence.
The injured passenger should sue the bus driver vicariously for his/her negligence.
The injured passenger should sue both Company A and Company B vicariously for the bus driver’s negligence.
Correct. This seems to be a rare occasion where there is dual liability. In Mersey Docks and Harbour Board v Coggins and Griffiths [1947] AC 1 the House of Lords stated that, as a general rule, there was a rebuttable presumption that the original employer would remain vicariously liable. However, in Viasystems Ltd v Thermal Transfer Ltd and Others [2005] EWCA Civ 1151 the court found that, in certain circumstances, it is possible for two parties to be vicariously liable for the actions of the same, negligent employee. Dual liability might occur where an employee is lent to another employer and both employers are entitled, and obliged, to control the employee’s actions so as to prevent the negligent act. This seems to be the case here – the duration of the lending was relatively short, Company A trained the bus driver to drive, they continued to pay the bus driver’s wages and retained the power of dismissal. However, the bus driver was driving Company B’s bus at time of the negligence and Company B had a responsibility to make sure the bus driver was a competent driver before allowing the bus driver to drive one of their buses.
While the other options might sound plausible, they are each incorrect.
The explanation above should explain why the other options are incorrect. The injured passenger would not be suing the bus driver vicariously. The bus driver committed the negligence so the injured passenger can sue him/her directly in the tort of negligence.
Newlyweds leaving for their honeymoon are dropped off at the airport by their best man. Just after their arrival at the airport, it catches fire due to poor electrical maintenance. The best man hears about the fire on the radio in his car and is extremely distressed. The newlyweds escape unharmed, but three months later their best man is still suffering from nightmares.
Which of the reasons below is the best reason why a negligence claim brought by the best man against the airport would fail?
He was not related to the newlyweds.
He did not fear for his own safety.
He did not suffer from a medically recognised psychiatric illness.
He did not witness the incident.
His distress was not reasonably foreseeable.
He did not suffer from a medically recognised psychiatric illness.
Correct
Correct. In all claims for psychiatric harm a key criterion is that the claimant has suffered a medically recognised psychiatric illness; distress and nightmares are not medically recognised psychiatric illnesses.
A married couple are at a festival. The wife stays at the back of the crowd and the husband pushes to the front. Due to poor crowd control arrangements, when the crowd unexpectedly surges forward a number of people at the front are severely injured. The couple are both very frightened. The husband helps to get the injured people into ambulances, but the wife is too worried about her husband to help. Neither of them are physically hurt, but both suffer from a recognised psychiatric illness afterwards. If the couple were to bring a negligence claim against the festival organiser for their psychiatric illness, which of the following best describes how they will be viewed for the purposes of duty of care?
Two primary victims.
Two secondary victims.
A primary victim and a secondary victim.
An actual victim and a primary victim.
An actual victim and a secondary victim.
A primary victim and a secondary victim.
Correct. The husband was in the danger zone and feared for his own safety – Page v Smith (1996) 1 AC 155. The wife was not in the danger zone but feared for her husband’s safety – Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310.
A man is watching a cricket match on television when he sees part of the spectator area at the cricket ground collapse. The man knows that his son is at the match but does not know where he was sitting. He goes straight to the cricket ground where he is told by the police that his son has been taken to hospital. When he arrives at the hospital an hour later, he is told that his son has died from crush injuries but several hours pass before he is able to identify him in the morgue. The man develops clinical depression.
Which of the following provides the best advice to the cricket ground?
The cricket ground will owe a duty of care to the man as he witnessed the immediate aftermath of the accident.
The cricket ground will owe a duty of care to the man as he has suffered a recognised psychiatric injury foreseeable in a person of ordinary fortitude.
The cricket ground will owe a duty of care as the man’s clinical depression is a sudden reaction to witnessing the accident.
The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.
The cricket ground will owe a duty of care to the man as the father/son relationship is a sufficiently close tie of love and affection to provide proximity.
The cricket ground will not owe a duty of care to the man as he saw the accident happen on television.
The man is a secondary victim as he was not in the danger zone but was in reasonable fear for the safety of his son (Alcock; Page v Smith). He will only be able to establish that he is owed a duty of care, by the cricket ground, if he can meet the criteria in Alcock. One criterion is that the manner of perception must be with one’s own unaided senses. Here he sees the accident happen on television, thus not with his own senses unaided. An exception to this has been made where the claimant has witnessed the ‘immediate aftermath’ of the accident (McLoughlin v O’Brian). However, on the facts the man did not ‘witness’ the injuries to his son for several hours and so would be highly unlikely to succeed on this basis as a time lapse of 7-8 hours was found to be too long in Alcock. Additionally, the man did not know where, at the cricket ground, his son was in the ground. In Alcock, the equivalent manner of perception was found to be insufficient, partly because broadcasting rules prevented the broadcast of recognisable individuals affected. The same would probably apply here and so the man would not be owed a duty of care by the cricket ground.
A niece and her aunt go for a haircut and colour. The hairdresser uses the wrong hair dye which causes the niece a severe burning rash and her skin starts to peel away immediately. The niece becomes clinically depressed. The aunt is so upset when she sees her niece’s skin peeling away that she cannot stop thinking about it several weeks later. The aunt is later diagnosed with post-traumatic stress disorder.
Which one of the following statements best explains the legal position in the tort of negligence where the loss is psychiatric harm?
The niece is an actual victim. The aunt is a primary victim; her claim will likely fail as she has not suffered any physical injury.
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail because she did not witness the event or the immediate aftermath.
The niece is an actual victim. The aunt is a primary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is a primary victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
The niece is an actual victim. The aunt is a secondary victim; her claim will likely fail due to insufficient ties of love and affection with her niece.
Correct
The niece is an actual victim as she has suffered physical injury as well as psychiatric harm. The aunt is a secondary victim as she has suffered psychiatric harm as a result of fearing for someone else’s safety. It is likely that her claim would fail as she may not have close ties of love and affection with her niece (the second stage of the Alcock criteria when establishing duty of care). However, of course, we would need to know more about their relationship to be sure but the aunt/niece relationship does not fall within one of the relationships where there is a rebuttable presumption of close ties of love and affection. While the other answer options might sound plausible, they are incorrect. The niece is not a primary victim as she has suffered physical injury as well as psychiatric harm. The aunt is a secondary victim, but she has witnessed the event. The aunt is not a primary victim as she was never in reasonable fear for her own safety.
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 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, 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 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.
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 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 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.
An ex-employee asks their previous employer to give a reference to a potential future employer. The previous employer carelessly confuses its own records, and as a consequence, advises the potential future employer that the ex-employee had many unexplained days off work. This is inaccurate. As a result of this inaccuracy, the potential future employer decides not to employ the ex-employee, causing them (the ex-employee) financial loss.
Which of the following best summarises whether or not the ex-employee’s previous employer owes them a duty of care in relation to this loss, and why.
There could be a duty of care owed to the ex-employee on the basis that the previous employer assumed responsibility to the ex-employee to exercise reasonable skill and care in the preparation of the reference when agreeing to provide it.
There could be a duty of care owed to the ex-employee on the basis that harm is clearly foreseeable.
There could be a duty of care owed to the ex-employee on the basis of the proximity between the previous employer and the ex-employer.
There is no duty of care owed to the ex-employee as the reference was provided to the potential future employer, not the ex-employee.
No duty of care is owed because the loss is pure economic loss.
There could be a duty of care owed to the ex-employee on the basis that the previous employer assumed responsibility to the ex-employee to exercise reasonable skill and care in the preparation of the reference when agreeing to provide it.
Correct. This reflects Spring v Guardian Assurance.
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 pure economic loss.
Personal injury and consequential economic loss.
Personal injury and consequential economic loss.
Correct
Correct. The golfer has suffered personal injury (a broken arm) and consequential economic loss (unable to play golf as a result of their injuries).
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 in an informal setting,
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 for free.
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.
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.
A university researcher prepares a report on fast growing new businesses. The report is prepared for the university’s own internal use and for the local Chamber of Commerce. An investor visiting the Chamber of Commerce picks up a copy of the report and decides to invest in one of the new businesses, which is described as ‘solvent, fast growing, and a risk-free investment’. The business fails miserably, and the investor loses all their money.
The investor is furious and takes advice from a solicitor as to a potential action against the university researcher for negligence.
Which of these statements is the best legal advice about whether or not the university researcher will owe the investor a duty of care?
The investor is unlikely to be owed a duty of care because they do not meet the criteria for an assumption of responsibility set out in Caparo.
The investor is unlikely to be owed a duty of care because they cannot show that they paid for the report in order to demonstrate that they relied on it.
The investor is likely to be owed a duty of care because they will be able to show that it was reasonable for them to rely on the report, and that the university researcher knew or ought to have known that an investor would rely on that report.
The investor is likely to be owed a duty of care because they will be able to show reasonable reliance on the report, supported by the university lecturer’s special expertise in this area.
The investor is likely to be owed a duty of care because the report was made for a similar purpose to that for which it was used.
The investor is unlikely to be owed a duty of care because they do not meet the criteria for an assumption of responsibility set out in Caparo.
Correct. This is a third-party case like Caparo, so it is likely the courts would apply the four criteria from this case for assumption of responsibility.
Which of the following is the best summary of the ‘defensive practices’ policy concern?
Liability should not be imposed where the alleged negligence is actually an established practice.
Liability should be imposed where it would defend the rights of victims.
Liability should be imposed where it discourages practices which include inappropriate risks.
Liability should not be imposed where it would lead to people taking undesirable ‘cautious’ / risk averse action.
Liability should not be imposed where it would lead to people taking undesirable ‘cautious’ / risk averse action.
Correct
Well done. This is what the ‘defensive practices’ policy concern is about. The idea of imposing liability where it discourages practices which include inappropriate risks is more akin to the ‘maintaining high standards’ policy concern. The other two answers suggest a misunderstanding of this area.
A police informant is claiming damages for negligence by the police. It is alleged that the police negligently left the informant’s contact details unattended in a police car which was stolen, and eventually reached the criminal against whom the informant had given evidence. The criminal broke into the informant’s house and physically assaulted them. Which of the following statements best describes the principal reason why the police might owe the informant a duty of care?
A duty of care is owed because the police created the source of danger.
A duty of care is owed because the informant is an identifiable victim.
A duty of care is owed because the police assumed responsibility for the informant’s welfare.
A duty of care is owed because it is fair, just and reasonable
A duty of care is owed because the police assumed responsibility for the informant’s welfare.
Correct
This answer best reflects why the Court of Appeal imposed a duty of care in the case of Swinney v Chief Constable of Northumbria (No.2), The Times, 25 May 1999 (same facts as the fact pattern). The police assume responsibility to protect informers against the criminals they give evidence about. Informers should not be considered like other members of the public; they have a special relationship with the police. Whilst being an identifiable victim certainly supports the argument for imposing a duty of care, recent case law suggests that this factor alone is not sufficient to a duty being imposed, so this is not the principal reason why the policy might owe a duty. Whilst creating the source of danger could support the argument for imposing a duty of care, this argument was not emphasised in Swinney and focus seems to be on assumption of responsibility.
Which of the following cases is the best authority for the proposition that medical professionals owe a duty of care to patients which they have accepted for treatment?
Robinson v CC of West Yorkshire Police
Baker v TE Hopkins & Son Ltd
Cassidy v Ministry of Health
Caparo Industries v Dickman
Cassidy v Ministry of Health
Well done. The other cases are all relevant to duty of care, but not this particular proposition.
A cyclist moves to overtake a slow-moving car, after giving the appropriate signals. At the same time, the driver of the car turns right without checking his mirrors and collides with the cyclist, causing injuries to the cyclist. Which of the following best summarises how the court will approach the question of whether the motorist owed a duty of care to the cyclist?
The court will consider foreseeability, proximity between the parties and whether imposing a duty of care would be fair, just and reasonable. Assuming these are satisfied, a duty of care was owed.
Foreseeability of harm is normally required before a duty can be imposed, but foreseeability alone does not normally justify imposing a duty. In any event, this is not how the court is likely to approach duty in this case. Revisit this element.
The court will rely on clear precedent to conclude that a duty of care was owed.
No duty of care was owed.
The court will rely on clear precedent to conclude that a duty of care was owed.
Well done. Precedent makes it a clear that a motorist owes a duty to other road users. See (eg) Nettleship v Weston. So it would be wrong to say ‘no duty of care was owed’. The other answers are wrong because the court will not need to engage in an original and/or complex analysis in relation to duty if there is a clear precedent. Even if it did, foreseeability of harm alone does not normally justify imposing a duty.
A farmer runs a sheep farm at the edge of a small rural village. She has owned and run the farm for 25 years. The sound of the sheep and the shearing is very loud prevents the owner of neighbouring house from using his garden for most of the summer. He has lived in the house for 22 years and has not been too bothered by the noise, but this year the farmer has increased the number of sheep by 50% and the neighbour decides he must do something about it now.
The neighbour visits a local solicitor for advice.
Which of these represents the most accurate legal advice?
The farmer has been causing an actionable nuisance to the neighbour, and the neighbour will not have an actionable claim because they moved to the nuisance.
The farmer has been causing an actionable nuisance to the neighbour, and the farmer is unlikely to have a defence of prescription if there has been significant increase in the nuisance.
The farmer has been causing an actionable nuisance for 25 years so may have the defence of prescription.
The farmer has been causing an actionable nuisance to the neighbour for 22 years and the neighbour has not complained until now, so the farmer will have the defence of prescription.
The farmer has probably not been causing an actionable nuisance due to the rural neighbourhood in which the farm is located.
The farmer has been causing an actionable nuisance to the neighbour, and the farmer is unlikely to have a defence of prescription if there has been significant increase in the nuisance
This answer best reflects the law in this area. There is an actionable nuisance on the facts and the change in the level of nuisance prevents the defendant from successfully relying on the defence of Prescription. For prescription defence to apply there must be 20 years or more of the actionable nuisance. In these facts the nuisance has only arisen recently. The fact the claimant moved to a nuisance is irrelevant. See Coventry v Lawrence [2014] UKSC 13 for example on this point. Character of the neighbourhood is a factor to be considered, though we don’t have sufficient information here.
A 5 year old boy is attending a funfair with his mother. While she is having their tickets checked, he wanders off and finds a large tent with cheering coming from inside it. At the entrance to the tent there is a sign stating: ‘Children must be accompanied by an adult.’ He walks into the tent and sees a tiger in a cage. He pushes his arm through the gap in the bars to pat the tiger. The tiger bites his arm, causing serious injury.
Which one of the following statements best explains whether or not the funfair owner owes the boy a duty of care?
The boy could be either a visitor or a trespasser. A duty of care will be therefore automatically imposed on the funfair owner.
The boy is a visitor because he had implied permission to be on the premises. The funfair owner therefore owes him an automatic duty of care.
The boy is a visitor because he had contractual permission to be on the premises once his mother bought the tickets. The funfair owner therefore owes him an automatic duty of care.
The boy is a trespasser because he should have been accompanied by an adult when he walked into the tent. The funfair owner therefore may owe him a duty of care.
The boy is a trespasser because he should not have put his arm into the tiger’s cage. The funfair owner will not therefore owe him a duty of care.
The boy is a visitor because he had contractual permission to be on the premises once his mother bought the tickets. The funfair owner therefore owes him an automatic duty of care.
Correct. The boy has contractual permission to visit the funfair as a ticket holder and so is a visitor for the purposes of s1(2) OLA 1957. His permission has not been limited by the sign that he, aged 5, will not have been able to read or understand. Following Pearson v Coleman Bros (1948) 2 KB 359 an occupier must be very clear as to the areas where visitors are denied access if he is seeking to limit their permission by area. The funfair is ‘premises’ for the purposes of s1(3) OLA 1957 and is controlled by the funfair owner, who is the ‘occupier’ for the purposes of s1(2) OLA 1957. The funfair owner therefore owes the boy an automatic duty of care under s 2(1) OLA 1957.
A family has owned a large country estate for 22 years, which they allow members of the public to visit upon paying an entrance fee. A woman pays the entrance fee and visits the country estate. As she is walking around the estate, she becomes distracted by her mobile phone ringing, so she does not look where she is going and she trips over a paving slab that has been left in the middle of the pathway. She suffers a broken ankle as a result.
Which statement best describes the defence available to the family in relation to the woman’s claim for her broken ankle?
The family can raise the defence of an act of a third party.
There are no defences that the family can raise.
The family can raise the defence of volenti.
The family can raise the defence of prescription.
The family can raise the defence of contributory negligence.
The family can raise the defence of contributory negligence.
Correct. The defence of contributory negligence is available against a visitor (section 2(3) Occupiers’ Liability Act 1957) and, on the facts, the woman has satisfied the test set out in Jones v Livox Quarries [1952] 2 QB 608.
An empty hospital ward is due to be refurbished and the hospital has put a sign on the door of the ward that says ‘Work in Progress - No entry under any circumstances’ and has placed a table across the doorway to prevent access. Some patients have been moving the table and opening the door to use the ward as a waiting room, as there is never enough space in the general waiting area. The hospital is aware a couple of patients have done this. A patient trips over a loose floor tile while waiting in the empty ward and breaks his arm.
Which of the following best describes whether or not the hospital is in breach of a duty of care to the patient under the Occupiers’ Liability Act 1984?
The hospital is unlikely to owe a duty of care to the patient as the risk is not one which the hospital would reasonably be expected to protect against.
The hospital is unlikely to owe a duty of care to the patient as it was not aware that anyone would be using the ward because it had prevented access.
The hospital is likely to owe a duty of care to the patient, but it is not in breach because it has taken reasonable steps to warn visitors of the danger.
The hospital is unlikely to owe a duty of care to the patient as he is not supposed to be in the empty ward.
The hospital is likely to owe a duty of care to the patient and it is in breach as it has failed to put up a sign that warns visitors of the actual danger.
Correct
The hospital is likely to owe a duty of care to the patient, but it is not in breach because it has taken reasonable steps to warn visitors of the danger.
Correct. The patient is a trespasser in the ward as the sign makes it clear that his presence in the ward would be objected to by the hospital - Robert Addie & Son (Collieries) Ltd v Dumbreck (1929) AC 358. The hospital will only owe a duty of care to the patient if each of the elements of s.1(3)(a)-(c) OLA 1984 are satisfied. If owed, the duty will be to take such care as is ‘reasonable in all the circumstances to see that he does not suffer injury by reason of the danger concerned’: s.1(4) OLA 1984. The hospital is aware of the danger, patients are known to be using the ward and the danger of the loose floor tile is likely to be a risk reasonable for the hospital to guard against. However, the hospital, in putting the sign on the ward door and a table in the doorway to prevent access has taken reasonable steps to warn of the danger. See s.1(5) OLA 84 and Titchener v BRB.
A department store needs to repaint its ladies’ toilets. They contract a decorator to do the work overnight. The next morning, although the decorator is still finishing off the work and the paint is still wet, the department store opens the ladies’ toilets as usual. A lady enters and her Chanel handbag gets covered in paint.
Which of the following best describes against whom the lady can bring a claim in occupiers’ liability under the OLA 1957?
The lady can bring a claim against the department store only, as they alone have a sufficient degree of control over the toilets.
The lady cannot bring a claim against anyone in occupiers’ liability as the toilets are not premises.
The lady can bring a claim against the department store and/or decorator, as both have a sufficient degree of control over the toilets.
The lady can bring a claim against the decorator only, as the decorator is the only person with a sufficient degree of control over the toilets.
The lady cannot bring a claim against anyone in occupiers’ liability as she has not suffered any personal injury
The lady can bring a claim against the department store and/or decorator, as both have a sufficient degree of control over the toilets.
Correct. The department store and decorator are multiple occupiers of the toilets (s 1(2) OLA 1957/Wheat v Lacon (1966) AC 552). The ladies’ toilets are ‘premises’ for the purposes of s 1(3) OLA 1957.
A client owns and runs a cafe. One of their customers sat on a broken chair which collapsed. They hit their head against the wall and suffered a serious head injury. There was a notice in the cafe reading “The owner of the cafe accepts no liability for any injury caused on the cafe premises howsoever caused.” The customer is suing the client for breach of duty under the Occupiers’ Liability Act 1957.
Which of the following statements is the most accurate advice to give the client?
The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer, as under the Unfair Contract Terms Act 1977, the notice will be deemed fair and reasonable.
The notice is an exclusion notice but is ineffective as under the Unfair Contract Terms Act 1977, a business occupier cannot exclude liability for personal injury resulting from their negligence.
The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer, as under the Consumer Rights Act 2015, the notice will be deemed fair.
The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer.
The notice is an exclusion notice but is ineffective as under the Consumer Rights Act 2015, a trader cannot exclude liability for personal injury resulting from their negligence.
The notice is an exclusion notice but is ineffective as under the Consumer Rights Act 2015, a trader cannot exclude liability for personal injury resulting from their negligence.
Correct
This is correct. Under s.65(1) CRA 2015 a trader (someone acting for the purposes relating to their trade, business, craft or profession) cannot exclude their liability for personal injury resulting from their negligence where the claimant is a consumer (someone acting wholly or mainly outside their trade, business, carft or profession).
A man buys some moisturiser. The packaging states ‘test the product on a small area of skin and wait 15 minutes before use all over the body. Do not use if a rash occurs’. The man tests the moisturiser on his arm and waits 5 minutes without any reaction. He then applies it to the rest of his body and later experiences a severe rash.
Which of the following statements most accurately reflects whether the man can successfully bring a claim in the tort of product liability under the Consumer Protection Act 1987?
The claim will likely succeed because the warning clearly explains what consequences may occur after the skin test.
The claim will likely succeed. The warning is not sufficiently clear about how long to wait and it was reasonable for the man to wait for only 5 minutes.
The claim will likely succeed because the manufacturer produced a defective product.
The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.
The claim will likely succeed because the warning is on the packaging not the product itself.
The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.
Correct. It seems unreasonable to only wait 5 minutes. If the manufacturer has given an adequate warning which the claimant has not followed then the manufacturer will likely successfully be able to argue that the product was not defective. The warning would be a reason for the man’s claim to fail because he was given adequate warning of what to do and what consequences to watch out for. A claim will not necessarily succeed simply because the warning was not on the product itself.
A woman buys a new steam cleaner. Two weeks later, while she is using it, it overheats and explodes causing irreparable damage to her wedding dress which had been hanging in the room. The dress is ruined and the wedding, due to be held the next day, has to be postponed. She purchases a replacement steam cleaner. Which of the woman’s losses are in principle recoverable if she brings a successful negligence claim against the manufacturer of the steam cleaner?
The woman will be able to claim only for the cost of replacement of the steam cleaner.
The woman will be able to claim only for the costs of postponing the wedding.
The woman will not be able to claim for the cost of replacement of the steam cleaner, the wedding dress nor the costs of postponing the wedding.
The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.
The woman will be able to claim for the damage to the dress, the costs of postponing the wedding and the cost of replacement of the steam cleaner
The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.
Correct. The cost of repair or replacement of an inherently defective product itself is not claimable in general negligence; this is regarded as pure economic loss. A claim can also be brought in relation to the ruined dress. It may be arguable that the wedding did not have to be postponed, just because the dress was ruined, in which case the postponement costs may not be recoverable, but the woman would be best advised to make the claim.
A manufacturer makes a defective car and sells it to a car dealership. The car dealership sells the car to a woman. The brakes on the car malfunction due to the defect and the woman suffers serious injuries in a car crash from which she dies several weeks later. The woman’s estate asks the car dealership for the name of the manufacturer because they have no other way of ascertaining it. The car dealership refuses to disclose the name of the manufacturer.
Which of the following statements most accurately reflects the claim(s) that the woman’s estate can currently bring in the tort of product liability under the Consumer Protection Act 1987?
The woman’s estate cannot bring any claims because claims cannot be brought on behalf of a dead person’s estate.
The woman’s estate can bring a claim against the manufacturer and the car dealership.
The woman’s estate cannot bring any claims because whilst claims can in principle be brought on behalf of a dead person’s estate, in this particular case, there is no cause of action.
The woman’s estate can only bring a claim against the manufacturer.
The woman’s estate can only bring a claim against the car dealership.
The woman’s estate can only bring a claim against the car dealership.
Correct
Correct. A claim can be brought against the car dealership as a supplier of the defective product that refuses to identify the manufacturer under s 2 (3) of the Consumer Protection Act 1987. A claim cannot currently be brought against the manufacturer because the identity of the manufacturer is not known. Claims can be brought on behalf of a deceased person’s estate.
An NHS Trust is being sued by a number of patients under the Consumer Protection Act 1987. The patients claim to have been transfused with blood infected by hepatitis in one of the Trust’s hospitals. The Trust wishes to say in its defence that it took all reasonable steps to prevent such a thing occurring, and that in any event the risk of infection was very small. The Trust wishes to know whether the blood was a defective product. Which one of the following is the best advice to give as to the question the court will ask itself when determining whether the blood was defective?
In deciding whether or not the blood was defective, the court will ask itself whether the Trust took as much care as its resources would allow to guard against infection.
In deciding whether or not the blood was defective, the court will consider that the state of scientific knowledge was not such as could have allowed the risk of infection to be discovered.
In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.
In deciding whether or not the blood was defective, the court will examine the expectations of the individual claimants in this litigation.
In deciding whether or not the blood was defective, the court will judge the Trust against the standard of the reasonably competent NHS Trust.
In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.
Correct. Under Section 3 of the Consumer Protection Act 1987 we find the test for whether a product is defective and this option is the closest to the wording of that test. Considering the other answers, it is the expectations of ‘persons generally’ which are crucial, not the expectations of the particular claimants. Neither the concept of ‘the standard of the reasonably competent NHS Trust’ nor an assessment of the Trusts resources are part of the test. The ‘state of scientific knowledge’ may be relevant to a defence, but not to considering liability in the first instance.
A chemist is being sued by several customers under the Consumer Protection Act 1987 who claim that a brand of the chemist’s own cough mixture has caused allergic reactions leading to fever and a painful rash. The chemist will say it has taken all reasonable care in the manufacturing process, and the medical evidence is virtually unanimous in saying that there is no known risk of such a reaction through taking this cough mixture. Only one article, published in Mandarin by a final year biochemistry undergraduate on his personal blog (which has 10,000 regular visitors) sets out research which indicates a 2% risk of such a reaction. This article was published one week ago. The chemist wishes to rely on the ‘development risks’ defence. Which one of these is the most accurate advice to give?
The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.
The defence will apply. The risk has been published and is therefore within the state of scientific knowledge.
The defence will not apply as the risk has now been discovered.
The defence might apply. The court will have to consider whether the blog article is sufficiently mainstream to bring the matter within the state of scientific knowledge.
The defence will apply as a reasonable body of medical opinion says there is no risk.
The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.
This is correct. The development risks defence judges the state of scientific knowledge at the time the product was put into circulation, so this article is not included in it. The discussion about whether the blog article is sufficiently mainstream to prevent the defence is therefore not relevant. Considering the other answers. The ‘reasonable body of medical opinion’ sounds more like negligence and the Bolam test, but the Consumer Protection Act is a different regime. ‘Discovering’ the risk or something being published about it is not enough to prevent the defence from applying.
A man wakes up with a headache and loss of sight in one eye. In order to seek treatment, he decides to drive himself to the hospital. Whilst driving, he loses sight in the other eye and drives into a pedestrian, causing them to suffer a broken leg.
What standard of care will the driver be held to?
He should be judged according to the standard of a reasonably competent driver.
He should be judged according to the standard of a reasonably competent ambulance driver, using the ‘act, not actor’ principle.
He should be judged according to the standard of a reasonably competent driver who is suffering from a condition that impairs his ability to drive.
He should be judged according to the standard of a reasonably competent driver.
Well done! This answer correct applies Roberts v Ramsbottom [1980] 1 All ER 7. The driver knew that he was ill when he started to drive and so he would be judged according to the standard of a reasonably competent driver.
A child is playing a game of football on the school playground. She runs for the ball and negligently collides with a lunchtime supervisor. What standard of care will the child be held to?
She should be judged according to the standard of a reasonably competent adult.
She should be judged according to the standard of a reasonably competent footballer, using the ‘act, not actor’ principle.
Standard of care is not relevant here because a duty of care is not imposed on a child.
She should be judged according to the standard of a reasonable child of her age.
Well done! This answer correctly applies Mullin v Richards [1998] 1 All ER 920 and Orchard v Lee [2009] EWCA Civ 295. Children can owe a duty of care but the standard expected of them is lower than that of an adult.
Which factors will the courts consider when deciding if a defendant has fallen below the standard of care?
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
The usual or common practice, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, and whether the error was negligent or simply an error of judgment.
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
The likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, and special rules in relation to sport.
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
Well done! The courts can take into account any of these factors if relevant.
Knightley v Johns [1982] 1 WLR 349
This case held that the act of a third party must be highly unforeseeable (i.e. something that was very unlikely to happen as a result of the defendant’s negligence) to break the chain of causation.
McKew v Holland & Hanmen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
Incorrect. This case held that an act of a claimant will break the chain of causation if it is highly unreasonable.
Which of the following cases held that medical negligence needs to be ‘palpably wrong’ in order to break the chain of causation?
McKew v Holland & Hanmen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
Robinson v Post Office [1974] 2 All ER 737
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292
Knightley v Johns [1982] 1 WLR 349
Robinson v Post Office [1974] 2 All ER 737
Correct
Well done! As a matter of policy, the courts are reluctant to hold that medical treatment breaks the chain of causation. When a defendant causes injury, he takes the risk that the claimant may not respond well to medical treatment or that the medical treatment may not be perfect.
Which of the following statements best describes general damages?
Damages that cover specifically provable and quantifiable financial losses.
Damages that are compensatory in nature.
Damages that cover non-quantifiable losses and future financial losses.
Damages that put the claimant in the position they would have been in but for the defendant’s tortious act.
Damages that cover non-quantifiable losses and future financial losses.
Well done! This is the correct description of general damages. In contrast, special damages cover specifically provable and quantifiable financial losses.
A passenger in a car refuses to wear a seatbelt. The driver negligently drives the car into a wall, causing the passenger to suffer a head injury. If the passenger had been wearing a seatbelt, then he would not have suffered the head injury. Which one of the following statements describes the position in relation to the defence of contributory negligence?
The defence of contributory negligence is available because the passenger failed to take reasonable care of himself and that failure contributed to his loss. His damages will be reduced.
The defence of contributory negligence is available because the passenger failed to take reasonable care of himself. His damages will be reduced.
The defence of contributory negligence is available because the passenger failed to take reasonable care of himself and that failure contributed to his loss. The passenger will therefore get no damages.
The defence of contributory negligence is not available because a driver cannot raise a defence of contributory negligence against a passenger.
The defence of contributory negligence is not available because the driver should have insisted that the passenger wear the seatbelt and so the passenger has not failed to take reasonable care of himself.
The defence of contributory negligence is available because the passenger failed to take reasonable care of himself and that failure contributed to his loss. His damages will be reduced.
Well done! This answer correctly applies the test of contributory negligence as set out in Jones v Livox [1952] 2 QB 608 and identifies that the passenger’s damages will be reduced as a result.
Lagden v O’Connor [2004] 1 AC 1067.
You need to apply the principle that the tortfeasor must take their victim as they find them, which applies equally to the claimant’s financial health as to their physical or mental state.
Lagden v O’Connor [2004] 1 AC 1067.
You need to apply the principle that the tortfeasor must take their victim as they find them, which applies equally to the claimant’s financial health as to their physical or mental state.
A driver negligently crashes his car into a woman’s front garden wall, causing significant damage. The woman could not afford to carry out the repairs to the wall immediately and as a result the wall collapses four months later. If the repairs had been carried out immediately, the cost would have been £500. The cost of rebuilding the wall will now be £1500. Which of the following statements describes what the woman can claim as her loss?
The woman can claim for property damage of £500.
The woman can claim for property damage of £1500.
The woman can claim for property damage, which the court will quantify at trial.
The woman cannot claim for anything as the loss is now due to her own lack of money rather than the driver’s tort.
The woman can claim for property damage of £1500.
Correct. This answer applies the principle that the tortfeasor must take their victim as they find them, which applies equally to the claimant’s financial health as to their physical or mental state. This is set out in Lagden v O’Connor [2004] 1 AC 1067.
Which case first established the close connection test for identifying whether an employee has committed a tort within the course of employment?
Fletcher v Chancery Lane
Smith v Stages
Mohamud v WM Morrison Supermarkets plc
Lister v Hesley Hall Ltd
Lister v Hesley Hall Ltd
Correct
Well done! Lord Steyn stated in this case that the correct approach “is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort”.
Mohamud v WM Morrison Supermarkets plc
Whilst this case did involve the Supreme Court applying the close connection test and it held that it is actually a two fold test, this case came after Lister v Hesley Hall (which established the test).
A hairdresser is employed at a hair salon. A fellow employee hairdresser at the salon has a habit of playing practical jokes on their fellow employees. The employer is aware of this but has never told them to stop. One day, the hairdresser who plays practical jokes jumps out on the other hairdresser, scaring them and causing them to fall. They injure their ankle as a result.
Which of the following statements is correct in relation to whether the employer has breached the duty it owes to the injured hairdresser?
The employer has not breached its duty towards the injured hairdresser because the injured hairdresser should bring a claim against the other hairdresser instead of the employer.
The employer has breached its duty towards the injured hairdresser because they have employed someone known to be in the habit of playing practical jokes on fellow employees.
The employer has breached its duty towards the injured woman because they have employed the other hairdresser who is incompetent.
The employer has not breached its duty towards the injured hairdresser because the injured hairdresser should have told the employer about the other hairdresser playing practical jokes.
The employer has breached its duty towards the injured hairdresser because they have employed someone known to be in the habit of playing practical jokes on fellow employees.
Well done! This answer correctly applies the case of Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348 to the facts of the question.
A person is employed in a chocolate factory, working with melted chocolate which is incredibly hot. They have never done this sort of work before. Their employer provides them with safety gloves to wear whilst working but tells them that they only need to wear them if they want to. The person decides not to wear the safety gloves and, one day, they seriously burn their hands on the chocolate.
Which of the following statements is correct in relation to whether the employer has breached the duty it owes the injured person?
The employer has breached its duty towards the injured person because they did not encourage or even insist that they wear the safety gloves.
The employer has not breached its duty towards the injured person because the injured person decided not to wear the safety gloves.
The employer has breached its duty towards the injured person because it has not provided a safe place to work.
The employer has not breached its duty towards the injured person because the injured person knew all the risks of the job.
The employer has breached its duty towards the injured person because they did not encourage or even insist that they wear the safety gloves.
Well done! Given the high degree of risk of serious harm if the person did not wear the gloves because they were working with hot chocolate, the employer should have encouraged or even insisted that they wear the safety gloves (Bux v Slough Metals [1974] 1 Lloyd’s Rep 155).
As a result of a negligent driver, a passenger is physically unharmed but experiences a recurrence of a depressive illness. Which factor should their solicitor focus on when considering whether to make a claim for psychiatric harm?
The solicitor should consider whether a claim for psychiatric harm will fail for policy reasons
The solicitor should consider whether physical harm was reasonably foreseeable
The solicitor should consider whether the psychiatric harm was the result of the passenger witnessing a horrific event
The solicitor should make separate claims for negligence and psychiatric harm
The solicitor should consider whether physical harm was reasonably foreseeable
The psychiatric harm is a type of loss, but in order to decide whether the passenger can claim the solicitor has to consider whether the driver owed their client a duty of care. The first question to ask is whether physical harm is reasonably foreseeable which it would be in a road traffic accident. There is precedent for drivers owing passengers a duty of care (Nettleship v Weston).
A man comes across a train crash in which several passengers have been killed and injured, and assists by entering carriages and pulling surviving passengers from the burning wreck of the train. Afterwards he suffers from neurotic anxiety. Which statement explains whether he can recover damages for his neurotic anxiety (psychiatric harm)?
The rescuer cannot recover damages because psychiatric harm was not reasonably foreseeable.
There is no duty owed to rescuers when they are strangers to the victims of accidents because they do not share close ties of love and affection
The rescuer can recover damages if he can show that he was in danger himself in carrying out the rescue.
There is no duty owed to rescuers because of policy reasons to prevent the floodgates opening and to ensure that unmeritorious claims are kept away from trial
The rescuer can recover damages if he can show that he was in danger himself in carrying out the rescue.
The rescuer will be classed as a primary victim if he was in danger himself when carrying out the rescue. He would therefore be owed a duty of care as physical injury was reasonably foreseeable.
The Alcock criteria are sometimes cited as requiring you to consider: a) was the psychiatric harm reasonably foreseeable? b) Is there proximity of relationship between the claimant and the victim? c) Is there proximity in time and space? and d) Was the psychiatric harm shock-induced? In relation to (b), proximity of relationship between the claimant and the victim requires us to consider in particular which of the following?
How close (physically) the claimant and victim were.
The familial proximity of the parties ie how close they are in family terms (parent / child being closer than grandparent / grandchild, for example).
Whether the claimant was involved with / interacted with the victim in the course of the events which amounted to, or flowed from, the ‘shocking’ event.
The quality of the relationship between claimant and victim by reference to the bonds of love and affection between them.
The quality of the relationship between claimant and victim by reference to the bonds of love and affection between them.
Correct. This is more important than whether they are parent / child or grandparent/ grandchild etc. Physical closeness is important, but this is what the next criteria, ‘proximity in time and space’ is about.
Hedley Byrne v Heller & Partners provides an exception for when the courts will allow a claim for pure economic loss caused by a negligent misstatement. In this case the claim failed – what was the reason?
The claim failed because the reliance was not reasonable
The claim failed because the loss was not foreseeable.
The claim failed because the claimant was unable to show there was a special relationship
The claim failed because there was a disclaimer, so there was no voluntary assumption of responsibility
The claim failed because there was a disclaimer, so there was no voluntary assumption of responsibility
Correct
Well done. There was a disclaimer - this negated liability. Putting a disclaimer would probably mean that there was no voluntary assumption of responsibility, although note that now it would be subject to the UCTA 1977 and only allowed if it passed the test of reasonableness
Javaria sets up a face-painting stall at her garden party and provides numerous large barrels of paint for her guests to use. During the party the paint barrels are knocked over and paint leaks into Mark’s garden, ruining his organic vegetable patch. Which of the following is correct?
Mark could not bring a claim against Javaria because this was a one-off event.
Mark could bring a claim against Javaria on the grounds of private nuisance.
Mark could bring a claim against Javaria on the grounds of public nuisance.
Mark could bring a claim against Javaria under the rule in Rylands v Fletcher
Mark could bring a claim against Javaria under the rule in Rylands v Fletcher
Correct. The fact that Javaria brought numerous large barrels of paint onto her property means that harm to neighbouring gardens was foreseeable if the paint leaked
A student, at a university, uses the library facilities to revise for his PGDL exams. In previous months the library was a quiet and peaceful place in which to work. In recent weeks, the university has formally permitted the rugby society to use the room adjacent to the library to conduct fund raising activities. The fundraising events are considerably noisy, and the student can no longer revise in the library. As a result of his inability to revise adequately, the student fails his exams. The university does not offer the option to resit the exams. The student cannot qualify as a lawyer in this way. Which of the following statements represents the most appropriate advice to the student?
The student should be advised that he would have a claim in public nuisance but not in either private nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would not have a valid claim in private nuisance or public nuisance but should bring the claim under the rule in Rylands v Fletcher
The student should be advised that he would have a valid claim in private nuisance and Rylands v Fletcher but not in public nuisance
The student should be advised that he would have a valid claim in private nuisance but not in public nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would not have a valid claim in either private nuisance, public nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would not have a valid claim in either private nuisance, public nuisance or under the rule in Rylands v Fletcher
Yes. This is correct. The student, as a bare licensee, does not have the requisite legal interest in land to enable him to bring a claim in either private nuisance or in Rylands v Fletcher (Hunter v Canary Wharf). As a student, he would be a bare licencee. Additionally, the student would not have a valid claim in public nuisance as there is no evidence on the facts that a class of people (AG v PYA Quarries) have suffered any discomfort or inconvenience. The noise from the fundraising activity appears to only affect the student in question.
Which case held that planning permission does not determine private rights and therefore planning permission is normally of no assistance to the defendant in private nuisance claims?
Ryland v Fletcher
Coventry v Lawrence
Network Rail Infrastructure Ltd v CJ Morris
Colour Quest Ltd v Total Downstream UK Plc
Coventry v Lawrence
Well done! That is the correct authority. Network Rail relates to the concept of ‘abnormal sensitivity’. Rylands v Fletcher established the rule that uses the same name. Colour Quest relates to public nuisance.
Javaria decides to hold a party in her garden to celebrate her 40th birthday. She invites 100 guests and has a live band playing all night. Many of Javaria’s neighbours complain that they could not sleep because of the noise, which could be heard up to 3 miles away. Mark, who runs a bed and breakfast next door, finds that his guests refuse to pay because of the disruption. Which one of the following correctly describes the legal position?
The neighbours will have a claim in public nuisance. Mark will have an individual claim in public nuisance as he has been impacted above and beyond the rest of the class. He would not have a claim in private nuisance
The neighbours will have a claim in public nuisance. Mark will have an individual claim in private nuisance
As this is a one-off event neither the neighbours nor Mark can bring a claim in nuisance
The neighbours will have a claim in public nuisance. Mark will have no claim
The neighbours will have a claim in public nuisance. Mark will have an individual claim in public nuisance as he has been impacted above and beyond the rest of the class. He would not have a claim in private nuisance
Correct. Mark will not have a claim in private nuisance here as this is a one-off event rather than a continuous state of affairs
Which one of the following correctly describes an occupier for the purposes of Occupiers’ Liability?
The occupier is the person who has a sufficient degree of control over the property
The occupier is the person in physical occupation of the property
The occupier is the tenant of the property
The occupier is the owner of the property
The occupier is the person who has a sufficient degree of control over the property
Correct, this is the key principle set out in Wheat v Lacon. The rationale is that those who have a sufficient degree of control over premises should also have a duty of care placed upon them in relation to the safety of those on the premises. The occupier is not necessarily the owner or tenant, and ‘physical occupation’ is not a useful definition.
Tom is having a beer at a pub with a friend. He goes to find the toilet facilities and walks through a door marked ‘Private: Staff Only’. Tom goes on to walk down the staircase and falls due to a faulty hand rail. He is seriously injured in the fall. Which of the following best explains whether Tom is protected by either Occupiers’ Liability Act, and why?
Tom has no protection under either of the occupiers’ liability acts because he has been consuming alcohol
Tom has express permission to be on the premises as a customer of the pub and is therefore a visitor, protected by the Occupiers’ Liability Act 1957
Tom has express permission to be on the premises as a customer of the pub and is therefore a visitor, protected by the Occupiers’ Liability Act 1984
By walking into the staff-only area of the pub Tom has become a trespasser, protected under the Occupiers’ Liability act 1984
By walking into the staff-only area of the pub Tom has become a trespasser, protected under the Occupiers’ Liability act 1984
Correct. The sign on the door means that, beyond the door, Tom is a trespasser, but Tom may still be protected as a trespasser under the Occupiers’ Liability Act 1984.
Lila, a twelve-year old girl, is having Sunday lunch at a pub with her family. At the back of the pub there is a playground area, including an old, rusty slide. Lila sees the slide and begins to climb it. The slide gives way beneath her and she falls, breaking her arm. Which one of the following best explains the duty of care that the pub owed to Lila?
A duty to take such care as is reasonable to see that she will be safe whilst on the premises, as applies to all visitors whether children or adults
No duty of care is owed as the slide was old and rusty and Lila should therefore have known not to use it
A duty to take such care as is reasonable to see that she will be safe whilst on the premises, bearing in mind that children are less careful than adults
A duty akin to a parental role, ensuring that Lila is safe whilst on the premises
Correct
Correct. Under s 2(3)(a) of the Occupiers’ Liability Act 1957 a higher standard of care is owed to children as occupiers must be prepared for children to be less careful than adults. It would be wrong, however, to equate the occupier’s duty to that of a parent. The fact that the slide was old an rusty would not mean that no duty of care was owed, nor would it necessarily make the danger obvious to a child.
A duty to take such care as is reasonable to see that she will be safe whilst on the premises, bearing in mind that children are less careful than adults
Correct. Under s 2(3)(a) of the Occupiers’ Liability Act 1957 a higher standard of care is owed to children as occupiers must be prepared for children to be less careful than adults. It would be wrong, however, to equate the occupier’s duty to that of a parent. The fact that the slide was old an rusty would not mean that no duty of care was owed, nor would it necessarily make the danger obvious to a child.
Which of the following correctly summarises the link between a claim in negligence and a claim under the Consumer Protection Act 1987?
A claim under the Consumer Protection Act 1987 is a type of negligence claim. The elements of a claim in negligence should be considered first, followed by the requirements under the act.
Negligence provides protection in relation to financial losses (other than damage to property). The Consumer Protection act 1987 provides protection in relation to property damage and personal injury.
If a duty is owed under the Consumer Protection Act 1987, a duty will be owed in negligence, but to succeed in negligence, breach must also be shown.
These are two separate causes of action. Both, one or neither may be available. The elements of each cause of action should be considered separately.
Where a party is liable in negligence in relation to a defective product, then that party will also be liable under the Consumer Protection Act 1987
These are two separate causes of action. Both, one or neither may be available. The elements of each cause of action should be considered separately.
Correct. The other answers are incorrect, or gross simplifications.
Roe v Minister of Health [1954] 2 QB 66.
‘state of art’ defence: The courts must assess the doctor’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Which one of the following cases held that the court can “reach the conclusion that views held by a competent medical expert are unreasonable”?
Maynard v West Midlands RHA [1985] 1 WLR 634
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771
De Freitas v O’Brien and Connolly [1995] 6 Med LR 108
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771
Well done! It should be noted though that Lord Browne-Wilkinson acknowledged that it would only be in ‘rare’ or exceptional cases that judicial intervention could be justified.
Which factors will the courts consider when deciding if a defendant has fallen below the standard of care?
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
The likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, and special rules in relation to sport.
The usual or common practice, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, and whether the error was negligent or simply an error of judgment.
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
The usual or common practice, the likelihood of harm, the magnitude of harm, the practicality of precautions, any benefit of the defendant’s conduct, special rules in relation to sport, what the ‘state of the art’ was at the time of breach, and whether the error was negligent or simply an error of judgment.
Well done! The courts can take into account any of these factors if relevant.
Whitehouse v Jordan [1980] 1 All ER 650 sets out which principle relevant to breach?
The more likely someone is to get injured, the more likely it is that the court will find a breach.
If it would be unreasonable to require a defendant to take necessary precautions, the court will not impose liability.
The court must make a distinction between an error of judgment and actual negligence.
The courts must assess the doctor’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
The court must make a distinction between an error of judgment and actual negligence.
Well done! This principle was discussed by Lord Fraser.
What is the burden of proof on the claimant in relation to the ‘but for’ test?
The claimant needs to prove their case on the balance of probabilities, i.e. that there is a more than 50 per cent chance that the defendant’s breach caused the loss.
The claimant needs to prove that there is a more than 40% chance that the defendant’s breach caused the loss.
The claimant needs to prove their case beyond reasonable doubt, i.e. that it is beyond reasonable doubt that the defendant’s beach caused the loss.
The claimant needs to fully prove their case, i.e. that there is a 100% chance that the defendant’s breach caused the loss.
The claimant needs to prove their case on the balance of probabilities, i.e. that there is a more than 50 per cent chance that the defendant’s breach caused the loss.
Well done! This is the correct burden of proof given that negligence is part of the civil law.
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292
This case held that an act of God breaks the chain of causation if it is some exceptional natural event. Natural events will not break the chain of causation if they could have been foreseen and the claimant should have taken them into account as events that were likely to happen.
Wagon Mound (No.1) [1961] AC 388
This case sets out the test for remoteness, i.e. a claimant can only recover if they can show that the damage that they have suffered was reasonably foreseeable at the time that the defendant breached the duty of care owed to the claimant.
A passenger in a car was injured due to the driver’s negligent driving. The car was found to contain a large packet of cocaine which the driver and passenger were planning to sell later.
Which one of the following statements describes the position in relation to the defence of illegality?
The defence of illegality is available because the driver and the passenger were planning to sell cocaine. The passenger will therefore get no damages.
The defence of illegality is not available because the passenger has not committed an illegal act.
The defence of illegality is not available because there was not a direct link between the passenger’s injury and the illegal act of planning to sell cocaine.
The defence of illegality is available because the driver and the passenger were planning to sell cocaine. The passenger’s damages would be reduced.
The defence of illegality is not available because there was not a direct link between the passenger’s injury and the illegal act of planning to sell cocaine.
Well done! Illegality would not apply here as there is no direct link between the passenger’s injury and the illegal act (Delaney v Pickett [2011] EWCA Civ 1532).
Lagden v O’Connor [2004] 1 AC 1067
This case held that the ‘thin skull’ rule applies even if the damage has been aggravated by the claimant’s own lack of monetary funds.
Which of the following cases held that once it has been established that the type of damage is reasonably foreseeable, there is no need to foresee the exact way in which the damage occurred?
Lagden v O’Connor [2004] 1 AC 1067
Wagon Mound (No.1) [1961] AC 388
Hughes v Lord Advocate [1963] AC 837
Vacwell Engineering v BDH Chemicals [1971] 1 QB 88
Hughes v Lord Advocate [1963] AC 837
Well done! Once it has been established that the type or kind of damage is reasonably foreseeable, then there is no need for it also to be reasonable for the defendant to foresee the exact circumstances leading up to the damage. Overwhelmingly, subsequent cases have followed this approach.
Which case established the ‘multiple factors’ or ‘economic reality’ test for determining whether an employee/employer relationship exists?
Viasystems Ltd v Thermal Transfer Ltd and Others [2005] EWCA Civ 1151
Mersey Docks and Harbour Board v Coggins and Griffiths [1947] AC 1
Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497
Barclays Bank v Various Claimants [2020] UKSC 13
Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497
Well done! In this case, the court indicated that there is a three-part approach to take when considering whether there is an employment relationship: (i) remuneration in exchange for personal services and mutuality of obligations; (ii) control; and (iii) all other contractual factors consistent with an employment relationship.
Barclays Bank v Various Claimants [2020] UKSC 13
This case establishes that a party who is clearly carrying on their own independent business is not in a relationship akin to employment, and so an employer cannot be vicariously liable for any torts that they commit.
A primary victim is….
…someone who is first to suffer an injury as a result of the tortious act concerned.
…someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety.
…someone ‘outside’ the danger zone but foreseeably at risk of injury.
…someone who suffers a psychiatric injury which is foreseeable to the tortfeasor.
…someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety.
Well done! The other answers are wrong because: ‘primary’ is not a reference to being first in time; whether someone is a primary victim is not really a question of foreseeability of psychiatric harm; and a primary victim is inside the danger zone, not outside it.
Hinz v Berry is authority for the proposition that…
…secondary victims can only claim in more limited circumstances than primary victims.
…depression is not a medically recognised psychiatric injury.
…depression is not a foreseeable consequence of a traumatic event.
…sorrow is not a medically recognised psychiatric injury.
…sorrow is not a medically recognised psychiatric injury.
Correct. In contrast, depression is a recognised psychiatric injury. The proposition that “secondary victims can only claim in more limited circumstances than primary victims” is true, but Hinz v Berry is not a good authority for this proposition. The proposition that “depression is not a foreseeable consequence of a traumatic event” is simply incorrect. A party can only recover in relation to medically recognised psychiatric injury, not for ‘sorrow’.
…secondary victims can only claim in more limited circumstances than primary victims.
Incorrect. This proposition is true, but Hinz v Berry is not a good authority for this proposition. Revisit this element.
Pure economic loss is best defined as….
Loss directly flowing from the breach of duty concerned.
Economic loss that arises where the duty was specifically to protect from financial (or other non-physical) harm.
Economic loss that arises where there has been no damage to the claimant’s property or injury to their person.
Financial harm suffered as a result of the destruction of physical goods or of personal injury.
Economic loss that arises where there has been no damage to the claimant’s property or injury to their person.
Well done!
Which case is the best authority for the proposition that the general rule is that no duty of care is owed in respect of pure economic loss?
Page v Smith
Hedley Byrne v Heller
Caparo v Dickman
Spartan Steel
Spartan Steel
Correct
Well done. Although Hedley Byrne v Heller and Caparo Dickman could arguably be authorities for this proposition, Spartan Steel is most directly relevant, and therefore it is the best choice.
Which one of the following correctly describes the differences between private and public nuisance?
Private nuisance is actionable per se, public nuisance is not.
Private nuisance requires a continuous state of affairs causing interference with the Claimant’s use or enjoyment of land, whereas a public nuisance can be a one-off isolated event.
Claims in private nuisance can be brought by an individual, whereas public nuisance claims can only be brought by an attorney general or local authority.
Private nuisance is a crime as well as a tort. Public nuisance is a tort only.
Private nuisance requires a continuous state of affairs causing interference with the Claimant’s use or enjoyment of land, whereas a public nuisance can be a one-off isolated event.
Where the defendant’s activity is being carried out on the basis of statutory authority, then….
The defendant will escape liability, provided they comply with the precise wording of the statute concerned.
this may be relevant to other causes of action, but not to nuisance.
the defendant will escape liability for private nuisance if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
The defendant may be still be liable, but any damages will be assessed at nil.
the defendant will escape liability for private nuisance if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
Correct. Well done!
The duty under the Occupiers’ Liability Act 1957 is a duty to…
…take reasonable care to ensure that the premises are free from defects or dangers not obvious on reasonable inspection.
…take reasonable care to ensure the visitor is reasonably safe in using the premises for the purposes for which they are permitted to be there.
…take reasonable steps to ensure that visitors, whilst on the premises with permission, do not suffer foreseeable harm.
…ensure the premises are safe for reasonable use.
…take reasonable care to ensure the visitor is reasonably safe in using the premises for the purposes for which they are permitted to be there.
Correct. See s 2(2) of the Act.
Which of the following best summarises how warning notices might help avoid liability in relation to trespassers?
The duty to take reasonable care might be satisfied by a warning notice which warns of the particular risk, or which discourages people from trespassing.
The duty to take reasonable care might be satisfied by a warning notice which discourages people from trespassing.
A warning notice has no impact on duty / breach as far as trespassers are concerned.
The duty to take reasonable care might be satisfied by a warning notice which warns of the particular risk.
The duty to take reasonable care might be satisfied by a warning notice which warns of the particular risk, or which discourages people from trespassing.
Correct. See s 1(5) of the OLA 1984.
The foreseeability of harm is very often part of the test for a duty of care. It is sometimes said that the test of foreseeability is ‘objective’. This means we ask:
What the claimant foresaw
What a reasonable person would consider appropriate circumstances to impose a duty.
What a reasonable person could have been expected to foresee.
What the defendant foresaw
This is what we mean when we say that the test of foreseeability is objective.
To consider what the defendant (or indeed the claimant) foresaw would be to adopt a subjective test – to look at what the subjects themselves (the defendant or claimant) foresaw. This is not correct.
To consider what a reasonable person would consider appropriate circumstances to impose a duty would be an ‘objective’ test, but it throws out the idea of foreseeability all together. This is not how the court approaches the question of whether to impose a duty.
In Caparo Industries v Dickman Lord Bridge indicated that the necessary ingredients in a situation giving rise to a duty of care are:
Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.
Foreseeability of damage, a relationship of proximity between the parties, and that it be economically productive to impose a duty.
Knowledge of the likelihood of harm, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.
Foreseeability of damage, an assumption of duty by one party to the other, and that it be fair, just and reasonable to impose a duty.
Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.
Which seminal case established the general principle that that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure someone who is so closely and directly affected by your act that you ought reasonably to have them in mind when considering how to act?
Caparo Industries v Dickman
Cassidy v Ministry of Health
Robinson v Chief Constable of West Yorkshire Police
Donoghue v Stevenson
Watson v British Boxing Board of Control
Donoghue v Stevenson
This case established an important principle, but later case law now provides a better indication as to how you should determine whether a duty of care is owed. The other cases listed are important cases in relation to duty of care, but are not cases that established the principle set out in the question.
The general rule is that…
…no liability is imposed on a mere failure to act
…liability is imposed on a failure to act on the same principles as it is imposed in relation to acts.
…no liability is imposed on a mere failure to act
Correct. This is the general rule (Smith v Littlewoods Organisation Limited [[1987] AC 241), but of course there are many exceptions.
Reeves v Commissioner of Police for the Metropolis [1999] 3 All ER 897 held that the police had a duty to take action (ie to avoid omissions) to protect a prisoner’s health, including protecting him from self-harm, because…
Statute imposed such a duty.
The police had a high degree of control over the defendant.
The defendant was a vulnerable person at significant risk of harm.
The police were in a relevant contractual relationship with the defendant.
The police had a high degree of control over the defendant.
This is the correct answer. The other answers are incorrect. Whilst statutes can require action and this can give rise to a duty in tort, this is not at the heart of this particular case. Similarly, a tortious duty to act can arise from a contractual relationship, but this was not relevant in this case – there was no contract between police and prisoner. The defendant may indeed have been vulnerable, but this is not really the important point in the case. Had the defendant been vulnerable but not in the police’s control, it is unlikely that they would have had the same duty to act.
Which of the following has a positive duty to respond to emergency calls?
The ambulance service
The police
The fire service
The ambulance service
Correct. The ambulance service has a positive duty to respond to emergency calls. The answering by the service of a call creates sufficient proximity between the caller and the service. Note, however, that even though the service has a duty to respond, it will not necessarily breach that duty if it responds late due to the unavailability of ambulances. The other answers are incorrect. Neither the police nor the fire service owe a duty to respond to emergency calls: but if they do respond, they may well be under a duty not to make the situation worse.
The police are transporting two dangerous criminals in a police van to be interviewed about a recent murder. The criminals escape from the van and seriously injure a passer-by in the process.
Which of the following statements is most accurate in relation to whether a duty of care is owed by the police to the passer-by?
It is unlikely a duty of care would be owed. The criminals were not under the care and control of the police at the time the passer-by was injured, and the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the passer-by was an identifiable member of a small group at risk over and above the public at large.
It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the police assume responsibility for the safety of the public.
It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
In the case of Stansbie v Troman the defendant decorator owed the claimant a duty of care for failing to secure the claimant’s property, which allowed for a third party to break in and commit a burglary. On what basis did the defendant (Troman) owe the claimant (Stansbie) a duty of care?
There was sufficient proximity because the claimant was an identifiable victim at risk of damage over and above the public at large.
The defendant had assumed responsibility for the claimant’s welfare.
There was sufficient proximity between the claimant and defendant because the defendant knew the claimant – he was working in the claimant’s property.
There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property.
There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property.
Correct. Two of the exceptions to the general rule in relation to acts of third parties were satisfied and so the courts held that a duty of care was owed (sufficient proximity between the parties and creation of the danger).
The general rule is that there is no duty owed for a failure to prevent a third-party causing harm. However, there are a number of exceptions to this rule which are:
There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
Where the defendant assumes responsibility for the claimant.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
There is sufficient proximity between the defendant and claimant; and
There is sufficient proximity between the defendant and third party; and
The defendant created the danger; and
The risk was on the defendant’s premises.
Where there is statutory duty.
Where there is contractual duty.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
Correct. These are the four exceptions to the general rule.
When considering whether public bodies owe a duty of care, the starting point should be…
…that public bodies do not owe a duty of care, other than in exceptional circumstances.
…to find precedents that concern public bodies, and to apply those.
…to apply principles of public law.
…to apply the same principles that are applicable to private individuals.
…to apply the same principles that are applicable to private individuals.
Correct. This should be your starting point.
For this reason, it would be wrong to start with precedents that concern public bodies, as this would be to take too restrictive an approach. It is wrong to say that public bodies owe a duty of care only in exceptional circumstances, because the starting point is that they owe a duty when a private individual would. Public law and the law of tort are two separate things, and are best considered separately.
A public body has a power to repair a highway. It fails to do so, and a cyclist suffers an injury as a result. Which of the following is the best way to analyse whether the public body owes a duty of care?
The public body is likely to owe a duty to repair the highway because choosing not to do so was an act which would foreseeably cause injury.
The public body will owe a duty of care to repair the highway because it had a power to repair the highway, and the failure to do so would foreseeably cause injury.
The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
Correct
This is the correct answer.
The other answers are incorrect.
The case of CN and GN v Poole Borough Council [2019] UKSC 25 makes clear that when looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
For this reason, it would be wrong to say that the public body will owe a duty of care to repair the highway because it had a power to do so.
It would be wrong to say that not repairing the highway is an act. It is an omission.
We often talk about ‘policy considerations’ in various contexts, including when considering whether a public body should owe a duty of care. When we talk about the ‘floodgates’ policy consideration, we mean concern that…
…imposing a duty of care now would help to avoid undesirable practices by the public body in the future
… imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed.
… imposing a duty of care would lead to a significant increase in the number of claims against the public body.
… imposing a duty of care would lead to a release of money to successful claimants in a way that would make it difficult for the claimants to manage that money.
… imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed.
Blyth v Birmingham Waterworks tells us that a defendant must….
… act as a prudent and reasonable person would.
…behave to the best of their abilities.
…avoid causing harm to those to whom they owe a duty.
… act as a prudent and reasonable person would.
This is the general rule that a defendant must behave as a reasonable person would in all the circumstances.
Which seminal case established that the standard of care expected of someone working in a professional capacity is that “of the ordinary reasonable man exercising and professing to have that special skill”.
Mullin v Richards
Caparo Industries v Dickman
Bolam v Friern Hospital Management Committee
Roberts v Ramsbottom
Bolam v Friern Hospital Management Committee
The most important thing to learn from Nettleship v Weston is that:
A person will be required to meet the standard appropriate for the act they are carrying out.
A person will be required to act with all reasonable care and skill.
No allowance is made for the fact that someone is learning to do something when determining the standard of care they are required to meet.
A person will be required to meet the standard appropriate for the act they are carrying out.
In Nettleship v Weston the court held that a learner driver was required to meet the standard of the ordinarily competent driver. No allowance was made for her lack of driving experience.
When determining if there has been a breach of duty, you must first ascertain the standard of care, and secondly ascertain if the defendant has fallen below that standard. Which of the following statements is correct in relation to those issues?
Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of fact.
Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of law.
Ascertaining the standard of care is a question of fact, ascertaining whether the defendant has fallen below it is a question of law.
Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact.
Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact.
Well done. This means that when considering whether the defendant has fallen below a given standard of care, precedents can give you useful principles, but each case will turn on its facts.
If a defendant was to be able to show that he or she acted in accordance with usual or common practice, this would…
…not be relevant when determining breach.
…make it less likely that the defendant breached his or her duty.
…show that the defendant did not breach its duty.
…make it less likely that the defendant breached his or her duty.
Well done. This would help the defendant, but it is still possible that a defendant has been negligent even if acting in accordance with usual or common practice, for example if the common practice was illogical: see Re Herald of Free Enterprise.
In which one of the following cases was the defendant held to have fallen below the required standard of care?
Latimer v AEC Ltd
Bolton v Stone
Watson v BBBC
Mullin v Richards
Watson v BBBC
Correct. The Court of Appeal concluded that the defendant had fallen below the standard of care expected in this case.
Which of the following best expresses the meaning of the ‘state of the art’ defence?
The defendant will have a defence to a claim if there were others in the field / profession acting as it did.
The courts must assess the defendant’s actions against the best practice (‘state of the art’ practice) in the particular field / profession concerned.
The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach.
Correct
Well done. It is wrong to say that the courts must assess the defendant’s actions against the best practice, because a defendant is not expected to be a ‘paragon of circumspection’ ie as cautious possible. It is wrong to say that the defendant will have a defence to a claim if there were others in the field / profession acting as it did, because compliance with usual / common practice alone will not prevent a defendant from being in breach, although it is a relevant consideration.
According to the case of Bolam v Friern HA, which of the following best describes the test for determining whether the defendant has fallen below the professional standard of care?
A professional is not guilty of negligence if they followed common practice in their particular field.
A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
A professional is not guilty of negligence if another professional in their field supports the practice they adopted.
A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.
An approach will be in accordance with a responsible body of opinion if:
At least 50 per cent of professionals in the field concerned have that opinion.
At least 1 per cent of professionals in the field concerned have that opinion.
At least 10 per cent of professionals in the field concerned have that opinion.
It is not possible to say a specific percentage would constitute a responsible body of opinion.
It is not possible to say a specific percentage would constitute a responsible body of opinion.
Well done. The answers which give a specific percentage are wrong for two reasons. Firstly, the courts have not fixed a percentage on ‘responsible body’. Secondly, whatever percentage of people hold an opinion, the court must separately consider whether that opinion is responsible. Even in a professional context, the court can find a common professional practice to be negligent.
Which of the following best summarises the key learning point from Montgomery v Lanarkshire Health Board?
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments in any areas which the patient has expressed an interest in.
Medical professionals are generally obliged to advise patients on all risks and alternative treatments.
Medical professionals are generally obliged to advise patients on those material risks and alternative treatments in a manner consistent with a responsible body of medical opinion.
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
Correct
Well done. This is exactly what the court said. When it comes to advising in relation to risks, the court has determined what approach a medical professional should take, rather than leaving this to the medical professionals to determine: it is not enough to act in a manner consistent with a responsible body of medical opinion. It is probably true that a medical professional must advise in relation to areas the patient has expressed an interest in, but this alone would not be sufficient. A medical professional is not obliged to advise on all risks and alternative treatments – this would impose too great a burden on medical professionals and would be unhelpful for patients.
Which of the following sentences correctly sets out that the ‘but for’ test is satisfied?
But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way.
But for the defendant’s duty, the claimant would have suffered their loss at that time and in that way.
But for the defendant’s duty, the claimant would not have suffered their loss at that time and in that way.
But for the defendant’s breach, the claimant would have suffered their loss at that time and in that way.
But for the claimant’s loss, the claimant would not succeed in the tort of general negligence.
But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way.
This is the correct answer. In order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way.
A patient attends their doctor with chest pain. The doctor briefly examines the patient and tells them to stay in the waiting room, where the patient has a heart attack and dies. Medical evidence suggests that if the doctor had treated the patient properly, there was a 45% chance of living.
Which of the following statements is correct in relation to the ‘but for’ test?
The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach.
The ‘but for’ test is satisfied as there was only a 55 per cent chance the patient would have lived without the breach.
The ‘but for’ test is not satisfied as there was a 45 per cent chance the patient would have died without the breach.
The ‘but for’ test is not satisfied as there was not a 100 per cent chance that the patient would have lived without the breach.
The ‘but for’ test is satisfied as there was a 45 per cent chance the patient would have lived were it not for the breach.
The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach.
This is the correct answer. In order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way. The patient in this scenario cannot do this. On the balance of probabilities, if it were not for the doctor’s breach, they would have died anyway.
A patient was in hospital being treated for heart disease. A nurse misread the consultant’s notes and negligently prescribed the patient incorrect medication (the breach). The patient suffered from a cardiac arrest and subsequent brain damage. Medical evidence suggests that the cardiac arrest was caused by either the heart disease or the breach. Which of the following is most accurate in relation to the ‘but for’ test?
The ‘but for’ test cannot be satisfied as the patient would have suffered the loss irrespective of the breach.
The ‘but for’ test is satisfied as the breach was one of the causes of the patient’s loss.
The ‘but for’ test is satisfied as there is a 50 per cent chance that the breach caused the patient’s loss.
The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss.
The ‘but for’ test cannot be satisfied as there is more than one potential cause of the patient’s loss.
The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss.
This is the correct answer. In order to satisfy the ‘but for’ test, the claimant must prove that there is a greater than 50 cent chance that the breach caused their loss. The patient cannot only prove that there was a 50 per cent chance. Factual causation fails. See Wilsher.
A patient undergoes an operation on their face that carries a 5% risk of causing permanent scarring. The risk materialises. The surgeon did not inform the patient of the risk prior to the operation.
Which of the following statements is most accurate in relation to factual causation?
Factual causation is not satisfied as there was only a 5% risk of the scarring.
Factual causation is satisfied if the patient can show that they would not have had the operation had they been told of the risk.
Factual causation is satisfied if the patient can show that they would have deferred the operation had they been told of the risk.
Factual causation is not satisfied as the patient consented to the operation.
Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk.
Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk.
This is the correct answer. In clinical negligence cases where the breach is a failure to advise on risk, the claimant must prove on the balance of probabilities that they would not have gone ahead with the treatment had they been informed of the risks. If they cannot do this, they can still satisfy factual causation if they can prove on the balance of probabilities that they would have deferred the treatment had they been informed of the risks. The rationale behind this being that ‘but for’ the doctor’s negligent failure to warn the claimant of the risk, the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had chosen to have the operation at a later date) was small.
Which of the following most accurately explains when the courts might apply the material contribution test and what the claimant must prove in order to satisfy the test?
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a significant contribution to their loss.
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a greater than 50 per cent contribution to their loss.
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the breach increased the risk of the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted independently to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
This is the correct answer. See Bonnington for an illustration of the material contribution test being applied in practice.
A patient visits A&E with severe stomach pain. After a five hour delay, they are seen by a doctor and diagnosed with appendicitis. The patient requires immediate surgery, but just before the surgery begins, their appendix ruptures and causes an infection. Medical evidence suggests that the appendicitis and the delay contributed to their rupture and infection.
Which of the following statements is most accurate in relation to factual causation?
Factual causation fails as it could have been the appendicitis alone, not the delay, that caused the rupture and infection.
Factual causation cannot be established as it cannot be shown that ‘but for’ the breach (the delay) the patient would not have suffered a rupture and infection.
The delay materially increased the risk of rupture and infection meaning factual causation is satisfied.
Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied.
There is a greater chance that the delay caused the rupture and infection than the appendicitis alone so factual causation is satisfied.
Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied.
This is the correct answer. This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delay) the rupture and infection would not have happened. However, it can establish that the contribution of the delay was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that the delay and appendicitis together caused the rupture and infection.
Which of the following most accurately explains when the courts might apply the material increase in risk test and what the claimant must prove in order to satisfy the test?
The court might apply the material increase in risk test to industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a significant contribution to the risk.
The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.
The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than 50% contribution to the risk.
The court might apply the material increase in risk test to industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.
The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.
This is the correct answer. See McGhee v National Coal Board [1973] 1 WLR 1 (HL) which established and applied this test.
Which of the following best describes apportionment?
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant.
Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants and claimant.
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants and claimant reflecting the respective fault of each claimant.
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability equally amongst the various defendants.
Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants.
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant.
This is the correct answer. Apportionment is a calculation applied once factual causation has been established.
What was a key difference between Baker and Jobling that might help to explain the contrasting decisions?
In Baker there were two tortious events and in Jobling there was a tort followed by a natural event.
In Baker the second defendant could not be found whereas in Jobling the second defendant could be found.
In Jobling there were two tortious events and in Baker there was a tort followed by a natural event.
In Baker the second defendant could be found whereas in Jobling the second defendant could not be found.
In Baker there were two tortious events and in Jobling there was a tort followed by a natural event.
This is the correct answer. In Jobling, the further back injury would have happened anyway, whether the claimant was injured or not. This was not the case in Baker.
A claimant suffered a serious arm injury at work due to their employer’s negligence and was signed off work for four months. Two months after the accident at work, the claimant was diagnosed with arthritis in the same arm and had to stop working completely. The arthritis was entirely unconnected with the accident at work and/or the injury that resulted.
Which of the following best describes the employer’s liability for the claimant’s losses?
The employer will be liable for all the claimant’s losses because a defendant is liable for any losses that occur after their breach.
The employer will be liable for all of the claimant’s losses even past the point of the arthritis.
The employer will be liable for all the claimant’s losses if the second defendant cannot be found.
The employer will not be liable for any of the claimant’s losses as the claimant would have suffered arthritis in any event.
The employer will be liable for the claimant’s losses up until the point that the arthritis developed.
The employer will be liable for the claimant’s losses up until the point that the arthritis developed.
